Gonzalez & Waddington – Attorneys at Law

Common Law Classifications

At common law, homicides are classified as justifiable, excusable, or criminal. Justifiable homicides are those commanded or authorized by law; they are not punishable. Excusable homicides are those in which the killer is to some extent at fault but where circumstances do not justify infliction of full punishment for criminal homicide; i.e. , the killing remains criminal but the penalty is reduced. Any killing that is not justifiable or excusable is criminal homicide — either murder, manslaughter, or negligent homicide.

Military Defense Lawyers

“Born Alive” Rule. United States v. Nelson , 53 M.J. 319 (C.A.A.F. 2000). The UCMJ does not define “human being” for the purposes of Articles 118 and 119, but Congress intended those articles to be construed with reference to the common law. A child is “born alive” if it: (1) was wholly expelled from its mother’s body, and (2) possessed or was capable of an existence by means of a circulation independent of that of the mother. Even if the child never took a breath of air from its own lungs, the child’s capability to do so is sufficient. But see UCMJ, Article 119a, Death or Injury to an Unborn Child.


  1. Death From Multiple Causes.
    1. United States v. Gomez , 15 M.J. 954 (A.C.M.R. 1982) (adopts two-part time of death standard: either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of total brain functions).
    2. United States v. Schreiber , 18 C.M.R. 226 (C.M.A. 1955) (accused held responsible for death even if his gunshot wound, following a severe beating of the victim by another, only contributed to the death by causing shock).
    3. United States v. Houghton , 32 C.M.R. 3 (C.M.A. 1962) (in child abuse death, contributing to or accelerating the death of the victim sufficient to establish responsibility).
  2. The Fragile Victim. If the wound, though not ordinarily fatal, causes the death of the victim, the accused is responsible. United States v. Eddy , 26 C.M.R. 718 (A.B.R. 1958).
  3. Negligent or improper medical treatment of the victim will not excuse the accused unless it constitutes gross negligence or intentional malpractice. United States v. Baguex , 2 C.M.R. 424 (A.B.R. 1952) (death by asphyxiation from aspiration into lungs of blood from facial injuries); United States v. Eddy , 26 C.M.R. 718 (A.B.R. 1958).
  4. Accused’s act need not be the sole cause of death, or the latest/most immediate cause of death. United States v. Romero , 1 M.J. 227 (C.M.A. 1975) (accused guilty of negligent homicide in overdose death after helping victim position syringe); see also United States v. Mazur , 13 M.J. 143 (C.M.A. 1982) (accused guilty of involuntary manslaughter by culpable negligence when assisted victim who could no longer inject self with heroin).
  5. Accused is responsible if his act caused the victim to kill herself unintentionally or byher negligence. See United States v. Schatzinger , 9 C.M.R. 586 (N.B.R. 1953).
  6. Intervening cause.
    1. An unforeseeable, independent, intervening event that causes the victim’s death may negate causation by the accused. See United States v. Riley , 58 M.J. 305 (2003) (holding doctors’ failure to diagnose appellant’s pregnancy was not an intervening cause of the baby’s death sufficient to relieve appellant of criminal liability (negligent birthing of child)).
    2. Contributory negligence by the victim must loom so large in comparison to the accused’s conduct as to be an intervening cause. United States v. Oxendine , 55 M.J. 323 (2001) (victim’s voluntary participation in a dangerous joint venture, being held outside a third-story window by his ankles, was not an intervening cause).
    3. When an accused’s wrongful acts set in motion an unbroken, foreseeable chain of events resulting in another’s death, his conduct is the proximate cause of the death. United States v. Stanley , 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegitative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); see also United States v. Markert, 65 M.J. 677 (N-M. Ct. Crim. App. 2007) (weapon horseplay resulted in Marine being shot in head; removal of life support was not an intervening cause).

Premeditated Murder. UCMJ art. 118(1)

  1. Test1 089 (Side 89)Intent. Requires a specific intent to kill and consideration of the act intended to bringabout death. The intent to kill need not be entertained for any particular or considerable length of time and the existence of premeditation may be inferred from the circumstances surrounding the killing. MCM, pt. IV, 43c(2)(a). See generally United States v. Eby , 44 M.J. 425 (1996).
    1. The “premeditated design to kill” does not have to exist for any particular or measurable length of time. United States v. Sechler , 12 C.M.R. 119 (C.M.A. 1953).
    2. Intent only to inflict grievous bodily harm is insufficient. United States v. Mitchell , 7 C.M.R. 77 (C.M.A. 1953).
    3. The distinction between premeditated murder and unpremeditated murder is sufficiently clear to withstand constitutional challenge. United States v. Curtis , 44 M.J. 106, 147 (C.A.A.F. 1996); United States v. Loving , 41 M.J. 213 at 279- 80 (C.M.A. 1994), aff’d , 517 U.S. 748 (1996).
    4. Premeditation is not a question of time but of reflection. United States v. Cole , 54 M.J. 572 (Army Ct. Crim. App. 2000), aff’d , 55 M.J. 466 (C.A.A.F. 2001).
    5. Instructions. Because of the potential confusion to panel members in making the distinction between premeditated and unpremeditated murder, counsel should consider requesting instructions in addition to the pattern instruction in the Military Judges Benchbook . See United States v. Eby , 44 M.J. 425 (C.A.A.F. 1996); United States v. Hoskins , 36 M.J. 343 (C.M.A. 1993), cert. denied, 513 U.S. 809 (1994).
  2. Proof of Premeditation.
    1. The existence of premeditation may be inferred from the circumstances. MCM, pt. IV, 43c(2)(a).
    2. Inferred from the viciousness of the assault. United States v. Ayers , 34 M.R. 116 (C.M.A. 1964).
    3. Inferred from the number of blows and the nature and location of injuries. United States v. Teeter , 12 M.J. 716 (A.C.M.R. 1981), aff’d in part , 16 M.J. 68 (C.M.A. 1983); United States v. Williams , 39 M.J. 758 (A.C.M.R. 1994).
    4. Inferred from prior anger and threats against the victim. United States v. Bullock , 10 M.J. 674 (A.C.M.R. 1981), aff’d, 13 M.J. 490 (C.M.A. 1982).
    5. Inferred from the fact that the weapon was procured before killing. United States v. Mitchell , 2 M.J. 1020 (A.C.M.R. 1976).
    6. Inferred from accused’s elaborate preparations preceding the murder, elaborate precautions to avoid detection, and brutal nature of the attack on the victim. United States v. Matthews , 13 M.J. 501 (A.C.M.R. 1982), rev’d as to sentence , 16 M.J. 354 (C.M.A. 1983).
    7. Inferred from lack of provocation; disadvantage of victim; and nature, extent and duration of attack. United States v. Viola , 26 M.J. 822 (A.C.M.R. 1988), cert. denied , 490 U.S. 1020 (1989).
    8. Other circumstances. United States v. Curtis , 44 M.J. 106 (C.A.A.F. 1996) (after clearly premeditated murder of first victim accused stabbed victim’s wife who came to his aid and then indecently assaulted her); United States v. Curry , 31 M.J. 359 (C.M.A. 1990) (violent shaking of child victim, coupled with the accused’s demeanor at hospital, prior abuse of child, and incredible explanation of injuries); United States v. Levell , 43 M.J. 847 (N-M. Ct. Crim. App. 1996) (opening gun case, walking to victim laying on the ground, saying “what do you think of this,” then firing fatal shots showed accused reflected with a cool mind on killing victim); United States v. Shanks , 13 M.J. 783 (A.C.M.R. 1982) (homicidal act part of conspiracy); see also United States v. Cooper , 28 M.J. 810 (A.C.M.R. 1989), aff’d, 30 M.J. 201 (C.M.A. 1990); United States v. Nelson , 28 M.J. 553 (A.C.M.R. 1989).
  3. Transferred Intent. See MCM, pt. IV, 43c(2)(b).
    1. United States v. Black , 11 C.M.R. 57 (C.M.A. 1953) (where the accused shot first victim with intent to murder and the bullet passed through his body striking a second, unintended victim, the accused was properly convicted of murder as to both victims).
    2. United States v. Willis , 46 M.J. 258 (C.A.A.F. 1997) (accused’s act of pulling trigger three times at nearly point blank range, moving the pistol between each shot with the evident intent of covering small area occupied by intended victim and her husband was sufficient to infer accused’s intent to kill intended victim’s husband under doctrine of transferred intent).
  4. State of Mind Defenses. All state of mind defenses apply to reduce premeditatedmurder to unpremeditated murder; however,
    1. Voluntary intoxication may reduce premeditated murder to unpremeditated murder or murder by murder by inherently dangerous act, but it may not reduce premeditated or unpremeditated murder to manslaughter or any other lesser offense. United States v. Morgan , 37 M.J. 407 (C.M.A. 1993); M.C.M. pt. IV, 43c(2)(c). Accused can still be convicted of premeditated murder even though accused drank alcohol if his behavior clearly established that he fully appreciated what he was doing before, during, and after the murder. United States v. Glover , No. 9901132 (Army Ct. Crim. App. Nov. 7, 2002) (unpublished).
    2. Rage or personality disorder do not necessarily reduce to unpremeditated murder. United States v. Roukis , 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d, 62 M.J. 212 (2005) (“The fact that appellant may have been enraged at the time of the killing, whether as a result of his particular personality disorder or the circumstances of his marriage, ‘does not necessarily mean that he was deprived of the ability to premeditate or that he did not premeditate.’”).
  5. Punishment.
    1. Maximum: Death. Capital case procedures are set forth in R.C.M. 1004. The M.C.M. capital procedures were held to be constitutional in Loving v. United States , 517 U.S. 748 (1996).
    2. Mandatory Minimum: Imprisonment for life with eligibility for parole. M.C.M., pt. IV, 43d(2)(e).

Unpremeditated Murder. UCMJ art. 118(2)

  1. Test1 089 (Side 89)Nature of Act. The offense can be based on an act or omission to act where there is aduty to act; United States v. Valdez , 35 M.J. 555 (A.C.M.R. 1992) (parent’s deliberate failure to provide medical and other care to his child which resulted in child’s death supported charge of murder), aff’d, 40 M.J. 491 (C.M.A. 1994). See also United States v. Nelson , 53 M.J. 319 (C.A.A.F. 2000)(holding that a mother who chose to give birth without medical assistance and failed to check on the health of her newborn for over an hour, resulting in the child’s death, could be guilty of involuntary manslaughter based on culpable negligence in her duty to care for the child); but see United States v. Riley , 47 M.J. 603 (A.F. Ct. Crim. App. 1997) (murder conviction set aside and finding of involuntary manslaughter of an accused who sought no medical attention during pregnancy or delivery), modified and aff’d , 58 M.J. 305 (C.A.A.F. 2003) (involuntary manslaughter conviction set aside in favor of negligent homicide conviction because accused’s failure to seek medical care was not culpably negligent).
  2. Intent. Accused must have either a specific intent to kill or inflict great bodily harm.
    1. The inference of intent. A permissive inference is recognized that a person intends the natural and probable consequences of an act purposely done by him. United States v. Owens , 21 M.J. 117 (C.M.A. 1985); United States v. Varraso , 21 M.J. 129 (C.M.A. 1985); see United States v. Wilson , 26 M.J. 10 (C.M.A. 1988).
    2. Great bodily harm. A serious injury not including minor injuries such as a black eye or bloody nose, but includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injury. MCM, pt. IV, 43c(3)(b).
    3. All state of mind defenses apply except voluntary intoxication. MCM, pt. IV, 43c(2)(c). Voluntary intoxication cannot defeat capacity of accused to entertain intent to kill or inflict great bodily harm required for unpremeditated murder; one who voluntarily intoxicates himself or herself cannot be heard to complain of being incapable, by virtue of that intoxication, of intentionally committing acts leading to death of another person. United States v. Morgan , 37 M.J. 407 (C.M.A. 1993).
  3. Heat of passion defense reduces unpremeditated murder to voluntary manslaughter.See paragraph H, below.
    1. Heat of passion must be caused by adequate provocation. The provocation must be adequate to excite uncontrollable passion in a reasonable person. MCM, pt. IV, 44c(1)(b).
  4. Transferred intent also applies to unpremeditated murder. MCM. pt. IV, 43c(3)(a)(“The intent need not be directed toward the person killed”). See United States v. Willis , 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (C.A.A.F. 1997).
  5. Maximum Punishment: Life imprisonment, with or without eligibility for parole. MCM, pt. IV, 43e(2). RCM 1003(b)(7).

Murder While Doing An Inherently Dangerous Act. UCMJ art. 118(3)

  1. In General. Alternative theory to unpremeditated murder.
  2. Intent.
    1. Specific intent not required. United States v. McMonagle , 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).

    Test1 112 (Side 112)

    1. Knowledge. Accused must have known that the probable consequence of his act would be death or great bodily harm. United States v. Berg , 30 M.J. 195 (C.M.A. 1990), aff’d on reconsideration , 31 M.J. 38 (C.M.A. 1990). MCM, pt. IV, 43c(4)(b).
    2. Death-causing act must be intentional. United States v. Hartley , 36 C.M.R. 405 (C.M.A. 1966).
    3. The act must evidence wanton heedlessness of death or great bodily harm. MCM, pt. IV, 43c(4)(a).
  3. Nature of Act. The conduct of the accused must be inherently dangerous to“another”, i.e. , at least one other person. This is a change Congress made in the law pursuant to the National Defense Authorization Act for Fiscal Year 1993 in response to United States v. Berg , 31 M.J. 38 (C.M.A. 1990), in which the Court of Military Appeals required the accused’s conduct to endanger more than one other person.
  4. Malice Requirement. For a discussion of the malice required, see United States v.Vandenack , 15 M.J. 230 (C.M.A. 1983) (no defense that accused did not intend to cause death or great bodily injury, provided the act showed wanton disregard of human life).
  5. Voluntary intoxication not a defense. MCM, pt. IV, 43c(3)(c).
  6. Examples of Inherently Dangerous Conduct.
    1. United States v. McMonagle , 38 M.J. 53 (C.M.A. 1993) (firing a weapon indiscriminately in an inhabited area during a sham firefight in Panama during Operation JUST CAUSE).
    2. United States v. Hartley , 36 C.M.R. 405 (C.M.A. 1966) (shooting into a crowded room).
    3. United States v. Judd , 27 C.M.R. 187 (C.M.A. 1959) (shooting into a house trailer with two others present).
    4. United States v. Vandenack , 15 M.J. 230 (C.M.A. 1983) (speeding and intentionally running red light after a prior accident).

Felony Murder. UCMJ art. 118(4)

  1. Statutory Penalty: death or life imprisonment.
  2. In General. Homicide must be committed during the perpetration or attemptedperpetration of burglary, sodomy, rape, robbery, or aggravated arson. United States v. Jefferson , 22 M.J. 315 (C.M.A. 1986).
  3. Intent. No specific intent required, except that of underlying felony. United States v.Hamer , 12 M.J. 898 (A.C.M.R. 1982).
  4. Causation. Causal relationship between felony and death must be established. United States v. Borner , 12 C.M.R. 62 (C.M.A. 1953).
  5. Multiplicity. Felony murder is multiplicious with premeditated murder, UnitedStates v. Teeter , 16 M.J. 68 (C.M.A. 1983), and with unpremeditated murder. United States v. Hubbard , 28 M.J. 27 (C.M.A. 1989).
  6. Capital Punishment.
    1. In Enmund v. Florida , 458 U.S. 782 (1982), the Supreme Court of the United States Supreme Court held that to impose the death penalty for felony murder the accused must have killed or have had the intent to kill.
    2. Tison v. Arizona , 481 U.S. 137 (1987) (expands Enmund, holding that the Eighth Amendment does not prohibit the death penalty where the accused is a major participant in a felony that results in murder and “the mental state is one of reckless indifference”).
    3. R.C.M. 1004(c)(8) allows the death penalty only if the accused was the actual perpetrator of the killing. CAAF has held that this factor requires proof of an intent to kill or reckless indifference to human life. Loving v. Hart , 47 M.J. 438 (C.A.A.F. 1998).
    4. Accused’s pleas of guilty to unpremeditated murder and robbery by means of force and violence were, in context, pleas to the capital offense of felony murder. United States v. Dock , 28 M.J. 117 (C.M.A. 1989).
  7. Instructions. Where members could have reasonably found that accused formed theintent to steal from victim either prior to the infliction of the death blows or after rendering him helpless, he was not entitled to an instruction that, to be convicted of felony-murder he had to have the intent to commit the felony at the time of the actions which caused the killing. United States v. Fell , 33 M.J. 628 (A.C.M.R. 1991).

Attempted Murder. UCMJ art. 80

Attempted murder requires a specific intent to kill.

  1. Test1 107 (Side 107)Although a service member may be convicted of murder if he commits homicide without an intent to kill, but with an intent to inflict great bodily harm (UCMJ art. 118(2)) or while engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life (UCMJ art. 118(3)), those states of mind will not suffice to establish attempted murder. United States v. Roa , 12 M.J. 210 (C.M.A. 1982).
  2. Beyond mere preparation. Where the purported co-conspirator was acting as agovernment agent at all relevant times, the court would consider only the acts of the accused in determining whether the planned murder-for-hire went beyond mere preparation, so as to constitute attempted murder. United States v. Owen , 47 M.J. 501 (Army Ct. Crim. App. 1997).

Voluntary Manslaughter. UCMJ art. 119(a)

  1. Defined. An unlawful killing done with an intent to kill or inflict great bodily harmbut done in the heat of sudden passion caused by adequate provocation.
    1. Article 119(a) as a lesser-included offense. When the evidence places heat of passion and adequate provocation at issue in the trial, the military judge must instruct the members, sua sponte , on the lesser included offense of voluntary manslaughter. United States v. Wells , 52 M.J. 126 (C.A.A.F. 1999).
    2. Objective requirements.
      1. Adequate provocation so as to excite uncontrollable passion in a reasonable man. Adequate provocation is an objective concept. United States v. Stark , 17 M.J. 519 (A.C.M.R. 1984) (insulting, teasing, and taunting remarks are inadequate provocation). But cf. United States v. Saulsberry , 43 M.J. 649 (Army Ct. Crim. App. 1995) (finding adequate provocation after sustained taunting and simple assault), aff’d , 47 M.J. 493 (C.A.A.F. 1998).
      2. Provocation not sought or induced.
      3. Unspent at moment killing occurs. United States v. Bellamy , 36 M.R. 115 (C.M.A. 1966) (whether a particular provocation has spentits force & what constitutes a reasonable time for cooling off are questions of fact for the panel/fact-finder). The rage must continue throughout the attack. United States v. Seeloff , 15 M.J. 978 (A.C.M.R. 1983).
    3. Subjective requirements. The accused must in fact have been acting under such a heat of passion, fear, or rage. See United States v. Staten , 6 M.J. 275 (C.M.A. 1979); United States v. Jackson , 6 M.J. 261 (C.M.A. 1979).
    4. Sufficiency of proof. Despite defense claim that accused acted in sudden heat of passion, conviction of premeditated murder of wife’s lover was supported by sufficient evidence, including the obtaining of a special knife, decapitation of the victim, and comment to onlookers that “this is what happens when you commit adultery.” United States v. Schap , 44 M.J. 512 (Army Ct. Crim. App. 1996), aff’d , 49 M.J. 317 (C.A.A.F. 1998) (once raised at trial, Gov’t must disprove its existence beyond a reasonable doubt).
    5. Marital infidelity alone is not enough to justify voluntary manslaughter, still need to show accused was deprived of ability to premeditate or that the accused did not premeditate. United States v. Roukis , 60 M.J. 925 (Army Ct. Crim. App. 2005) aff’d , 62 M.J. 212 (2005).
  2. Attempted Voluntary Manslaughter. The offenses of attempted voluntary manslaughter and assault with intent to commit voluntary manslaughter require a showing of accused’s specific intent to kill. A showing only of a specific intent to inflict great bodily harm will be insufficient to establish these offenses. United States v. Barnes , 15 M.J. 121 (C.M.A. 1983).

Involuntary Manslaughter Resulting From A Culpably Negligent Act. UCMJ art. 119(b)(1).

  1. Test1 090 (Side 90)Intent. The standard of culpable negligence applies. MCM, pt. IV, 44c(2).
  2. Culpable negligence. “A degree of carelessness greater than simple negligence. It isa negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others.” MCM, pt. IV, 44c(2)(a)(i).
    1. Consequences are “foreseeable” when a reasonable person, in view of all the circumstances, would have realized the substantial and unjustifiable danger created by his acts. United States v. Oxendine , 55 M.J. 323 (2001) (holding a drunk victim by his ankles out of a third-story window without safety devices as part of a game of trust).
    2. Applications:
      1. Horseplay with Weapon. United States v. Markert , 65 M.J. 677 (N- M. Ct. Crim. App. 2007).
      2. Drug overdose death of another. United States v. Henderson , 23 M.J. 77 (C.M.A. 1986) (providing drug, encouraging use, providing private room, presence); United States v. Mazur , 13 M.J. 143 (C.M.A. 1982) (assisting fellow soldier to inject heroin into his vein); see generally Milhizer, Involuntary Manslaughter and Drug Overdose Death: A Proposed Methodology , Army Law., Mar. 1989, at 10.
      3. Child Abuse. United States v. Stanley , 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegitative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability); United States v. Brown , 26 M.J. 148 (C.M.A. 1988) (violently shaking a child); United States v. Baker , 24 M.J. 354 (C.M.A. 1987) (violently throwing child to an unpadded floor); United States v. Mitchell , 12 M.J. 1015 (A.C.M.R. 1982) (beating a child who would not stop crying).
      4. Participating in a dangerous joint venture. United States v. Oxendine , 55 M.J. 323 (C.A.A.F. 2001) (accused helped hang drunk Marine out of a third story window during thrill-seeking game with other Marines; drunk Marine fell to his death).
      5. Giving car keys to a drunk. United States v. Brown , 22 M.J. 448 (C.M.A. 1986).
      6. Failing to follow safety rules and driving after brakes failed. United States v. Cherry , 22 M.J. 284 (C.M.A. 1986).
      7. Culpably negligent surgical procedures. United States v. Ansari , 15 M.J. 812 (N.M.C.M.R. 1983); but see United States v. Billig , 26 M.J. 744 (N.M.C.M.R. 1988).
      8. Failure of parent to seek medical care for child. United States v. Martinez , 48 M.J. 689 (Army Ct. Crim. App. 1998), aff’d , 52 M.J. 22 (1999); United States v. Nelson , 53 M.J. 319 (C.A.A.F. 2000); but see United States v. Riley , 58 M.J. 305 (2003) (intentionally unassisted delivery of a baby where medical care was readily available was not culpably negligent so as to support a finding of involuntary manslaughter; found negligent homicide).
  3. Proximate Causation.
    1. To be proximate, an act need not be the sole cause of death, nor must it be the immediate cause–the latest in time and space preceding the death. But a contributing cause is deemed proximate only if it plays a material role in the victim’s [death]. United States v. Cooke , 18 M.J. 152, 154 (C.M.A. 1984) (quoting United States v. Romero , 24 C.M.A. 39, 1 M.J. 227, 230, 51 C.M.R. 133 (C.M.A. 1975)).
    2. United States v. Stanley , 60 M.J. 622 (A.F. Ct. Crim. App. 2004) (accused violently shook a 6-week old infant, who was resuscitated at the emergency room but remained in a persistent vegitative state; infant died upon removal of life support; the decision to remove life support did not “loom so large” as to relieve the accused of criminal liability).
  4. Effect of Contributory Negligence. The deceased’s or a third party’s contributorynegligence may exonerate the accused if it “looms so large” in comparison with the accused’s negligence that the accused’s negligence is no longer a substantial factor in the final result. United States v. Cooke , 18 M.J. 152 (C.M.A. 1984).
  5. Charge of involuntary manslaughter based upon culpably negligent failure to actrequires, as a threshold matter, proof of a legal duty to act. United States v. Cowan , 42 M.J. 475 (C.A.A.F. 1995).
  6. Involuntary manslaughter by culpable negligence not raised when death is the resultof an intentional assault. United States v. Wilson , 26 M.J. 10 (C.M.A. 1988).
  7. Pleading. When charged under a culpable negligence theory, an involuntarymanslaughter specification must allege that death was a reasonably foreseeable consequence of the accused’s misconduct. United States v. McGhee , 29 M.J. 840 (A.C.M.R. 1989); see generally TJAGSA Practice Note, The Scope of Assault , Army Law., Apr. 1990, Oct. 67, 68-70 (discusses McGhee ). After United States v. Jones.

Involuntary Manslaughter While Perpetrating An Offense Directly Affecting The Person Of Another. UCMJ art. 119(b)(2).

  1. Test1 124 (Side 124)Requires an act affecting some particular person as distinguished from an offenseaffecting society in general. MCM, pt. IV, 44c(2)(b).
  2. Applications.
    1. Assault. United States v. Jones , 30 M.J. 127 (C.M.A. 1990); United States v. Wilson , 26 M.J. 10 (C.M.A. 1988); United States v. Madison , 34 C.M.R. 435 (C.M.A. 1964); see generally TJAGSA Practice Note, Involuntary Manslaughter Based Upon an Assault , Army Law., Aug. 1990, at 32 (discusses Jones ); but see United States v. Richards , 56 M.J. 282 (2002) (insufficient evidence to necessitate involuntary manslaughter instruction).
    2. Drug Overdose Death of Another. United States v. Sargent , 18 M.J. 331 (C.M.A. 1984) (mere sale of drugs is not an offense “directly affecting the person of another”); see also United States v. Dillon , 18 M.J. 340 (C.M.A. 1984); see generally Milhizer, Involuntary Manslaughter and Drug-Overdose Deaths: A Proposed Methodology , Army Law., Mar. 1989, at 10.

Death or Injury to an Unborn Child. UCMJ Article 119a.

  1. Implementing Executive Order signed 18 April 2007. ISSUES:
    1. Article 119a exempts the following individuals from prosecution:
      1. Any person authorized by state or federal law to perform abortions for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;
      2. Any person for any medical treatment of the pregnant woman or her unborn child; or
      3. Any woman with respect to her unborn child.
    2. Intentional Killing of an Unborn Child or Attempts. UCMJ art. 119a specifically states that an individual who intentionally kills an unborn child or attempts to kill an unborn child will be punished under Articles 80, 118, or 119. Nonetheless, Part IV, 44a.b.(3) &
    3. provide elements for an offense involving the intentional killing of an unborn child as well as elements for an offense involving attempts to do so. These elements require the specific intent to kill the unborn child.
    4. Scienter. For injuring or killing an unborn child, the government need not prove: 1) that the accused knew the victim was pregnant, nor 2) that the accused should have known that the victim was pregnant. Additionally, for these two offenses, the government need not prove that the accused specifically intended to cause the death of, or bodily injury to, the unborn child.
    5. Punishment. Such punishment, other than death, as a court-martial may direct, but shall be consistent with the offense had it occurred to the unborn child’s mother.
  2. No reported cases on this offense. But see United States v. Robbins , 52 M.J. 159(1999) (prosecuting accused for involuntary manslaughter by terminating the pregnancy of his wife, in violation of § 2903.04 of the Ohio Revised Code, as assimilated by the Assimilative Crimes Act (ACA)).

Negligent Homicide. UCMJ art. 134

  1. Test1 143 (Side 143)Intent. The standard is simple negligence—the absence of due care. An intent to killor injure is not required. MCM, pt. IV, 85c(1).
  2. Simple Negligence Standard.
    1. See generally United States v. Gargus , 22 M.J. 861 (A.C.M.R. 1986).
    2. United States v. Riley , 58 M.J. 305 (C.A.A.F. 2003) (giving birth in hospital bathroom in a manner creating an unreasonable risk of injury, resulting in the death of the newborn). The Riley case demonstrates the comparison between involuntary manslaughter (culpable negligence) and negligent homicide (simple negligence). An inexperienced, immature lay person, giving birth for the first time, could not foresee the potential for explosive and unexpected birth and the likelihood of the baby’s resultant death . Nevertheless, the appellant’s simple negligence was the proximate cause of the baby’s death and was sufficient to sustain a conviction for negligent homicide because some injury was foreseeable.
  3. Relationship with Other Homicide Offenses.
    1. Negligent homicide is not an LIO of premeditated murder. United States v. Girouard , 70 M.J. 5 (C.A.A.F. 2011).
    2. Negligent homicide is not an LIO of involuntary manslaughter. United States v. McMurrin , 70 M.J. 15 (C.A.A.F. 2011).
  4. Applications.
    1. United States v. McDuffie , 65 M.J. 631 (A.F. Ct. Crim. App. 2007) (accused diagnosed with sleep apnea, drove vehicle, fell asleep, and drifted into oncoming traffic; involuntary manslaughter conviction set aside and affirmed as negligent homicide).
    2. United States v. Martinez , 42 M.J. 327 (C.A.A.F. 1995) (allowing fellow soldier to drive accused’s vehicle while under the influence of alcohol).
    3. United States v. Robertson , 37 M.J. 432 (C.M.A. 1993) (failure to obtain medical treatment for child).
    4. United States v. Spicer , 20 M.J. 188 (C.M.A. 1985) and United States v. Romero , 1 M.J. 227 (C.M.A. 1975) (conviction affirmed where accused helped another “shoot up” with heroin, resulting in that person’s death by overdose).
    5. United States v. Greenfeather , 32 C.M.R. 151 (C.M.A. 1962) (vehicle homicide).
    6. United States v. Cuthbertson , 46 C.M.R. 977 (A.C.M.R. 1972) (aircraft homicide).
    7. United States v. Zukrigl , 15 M.J. 798 (A.C.M.R. 1983) (failure to check on safety measures for a water crossing exercise).
    8. United States v. Perez , 15 M.J. 585 (A.C.M.R. 1985) (negligently entrusting child to a babysitter who had a history of assaulting the child).
    9. United States v. Gordon , 31 M.J. 30 (C.M.A. 1990) (horseplay on a rowboat with a nonswimmer); see generally TJAGSA Practice Note, Negligent Homicide and a Military Nexus , Army Law., Mar. 1991, at 28 (discusses Gordon ). j) United States v. Billig , 26 M.J. 744 (N.M.C.M.R. 1988) (offense may not be available for negligent surgical procedures). k) United States v. Kick , 7 M.J. 82 (C.M.A. 1979) (offense of negligent homicide is a proper basis for criminal liability. Furthermore, it has not been preempted by other specified punitive articles, i.e. , UCMJ arts. 118 and 119).
  5. Military courts have so far refused to use res ipsa loquitur to prove negligence incriminal cases. United States v. Ryan , 14 C.M.R. 153 (C.M.A. 1954); United States v. Bryan , 41 C.M.R. 184 (C.M.A. 1970); United States v. Thomas , 11 M.J. 315, 317 n. 2 (C.M.A. 1982).
  6. Proximate Cause. The negligence must be the proximate cause of the death. Although proximate cause does not mean sole cause, it does mean a material and foreseeable cause. United States v. Perez , 15 M.J. 585 (A.C.M.R. 1983) (death of child foreseeable where mother left child with boyfriend who had twice previously seriously injured child).

Death From Multiple Causes.

Relationship with Other Homicide Offenses.

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