Stewart Britch, his brother Ronald, Atencio (defendant) and Marshall (defendant) spent the day drinking wine in Stewart’s room in Boston. Marshall left the room and returned with a revolver containing one bullet. The men started talking about Russian roulette and saying they wanted to play the game with the gun. Marshall took the gun first, examined it, saw that it contained one bullet, put it to his head and pulled the trigger. Nothing happened. Marshall handed the gun to Atencio who repeated the process without any harmful result. Stewart received the gun from Atencio who spun the cylinder, put it to his head and pulled the trigger. The round exploded, killing Stewart. Atencio and Marshall were charged and convicted of manslaughter. They appealed.