1. General criminal intent.

In general intent crimes, it is not necessary for the prosecution to prove that the defendant intended the precise harm or result which occurred. The prosecution must prove, however, that the accused's actions were not accidental. In other words, suppose I walk up behind you and shove you. This is, of course, an assault and battery. General intent simply means that my act was not accidental; i.e., I intended to shove you; I didn't trip and accidentally bump into you.

2. Specific criminal intent. In the example above, suppose when I shove you, you fall into a desk corner, fracture your skull, and die? Is this only an assault and battery? To prove murder, the prosecutor needs to show that I intended something more than simply to shove you--he needs to prove I intended to kill you. In specific intent crimes, the prosecutor must prove not only that the defendant committed the criminal act, but also that he had the intent required by the statute to commit the crime. These crimes are easy to recognize because the statute itself sets out the specific intent required to prove the crime. Words in a statute which make it a specific intent crime include "knowingly," "willfully," "for the purpose of," "premeditated design," and "with intent to."

3. Intent distinguished from motive.

The term "intent" should not be confused with "motive." Motive is what prompts a person to act, while intent is more closely associated with what goal the perpetrator seeks to achieve through his actions. See United States v. Huet-Vauqhn, 43 MJ 105, (1995). In this case, an Army Captain, a medical officer, was convicted of desertion with the intent to avoid hazardous duty during Desert Storm/Shield. The Court of Appeals for the Armed Forces held that to the extent that accused quit her unit as a gesture of protest, evidence of her motive for protesting was "irrelevant to whether she possessed the specific intent to avoid hazardous duty or shirk important service." Id. at 106.

1. Simple Assault by offer.

An offer is simply a physical manifestation or physical demonstration. An offer type assault then, is an unlawful demonstration of violence which creates in the mind of another a reasonable fear of receiving immediate bodily harm. Part IV, MCM, 1984, Para 54(C) (1) (B) (II). The basic elements of proof in an offer type assault are that:

No physical contact is necessary to complete an offer type assault. The key to an offer type assault is that an unlawful demonstration of force frightens a victim. An offer type assault can be intentional or the result of a culpably negligent act. By culpable negligence we mean a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a disregard for the foreseeable consequences to others of that act or omission. Part IV, MCM, 1984, Para 44C. In other words, culpable negligence is an act so reckless as to make the actor criminally liable for his action (or inaction when there was a legal duty to act).

An important element of the simple assault by offer is the victim must be aware of the perpetrator's act and must reasonably feel bodily harm is about to result. For example, PVT Doe has committed simple assault by offer when he shakes his fist in PVT Roe's face. Of course, PVT Roe must see the fist, reasonably believe he may get hit, and be placed in reasonable apprehension or fear of being hit.

In our scenario above, if PVT Doe took a swing at PVT Roe but missed, the fact that Roe was frightened would be enough to constitute an offer type simple assault. If PVT Doe swings at PVT Roe's head simply to frighten Roe and Roe does not see the fist approaching and is not put in fear, then no offer type simple assault has been committed.

It must appear to the victim that the assailant has the ability to strike the victim. Without this, the victim can have no reasonable fear or apprehension of immediate bodily harm.

The perpetrator's ability to inflict injury does not have to be real as long as impending harm is reasonably apparent to the victim. One example of this could be pointing an unloaded pistol at another as a joke. Even though the pistol could not have been fired, the act of pointing the unloaded weapon at another will constitute an assault by offer as the victim is aware of the attack and was placed in reasonable fear of bodily injury. United States v. Bush, 47 CMR 532 (NCMR 1973).

2. Simple Assault by attempt.

An "attempt" type simple assault requires the prosecution to prove the accused had a specific intent to inflict bodily harm and that the accused made an act which amounted to more than mere preparation and apparently tended to bring about the intended bodily harm. The key here is that criminal liability is not based on how the victim perceives the incident but is, rather, based upon what the perpetrator intends to do. Accordingly, an attempt type simple assault may be committed even though the victim had no knowledge of the incident at the time.

For example, if PVT Doe intends to hit PVT Roe, but swings and misses PVT Roe's head, PVT Doe has committed a simple assault by attempt. It is not necessary that PVT Roe actually see the fist coming in order for PVT Doe to be convicted of simple assault by attempt.

1. That the accused did bodily harm to a certain person; and

2. That the bodily harm was done with unlawful force or violence.

In order to constitute bodily harm in an assault, any harmful or offensive touching will suffice. This is true even if the physical contact inflicts no pain and leaves no marks. Under Article 128, UCMJ, it may be a battery to spit upon another, to push a third person against another, or to set a dog at another which bites the person. Part IV, MCM 1984, para 54(c) (2) (c). The force which is applied in a battery may be applied directly by pushing a person, or indirectly by inflicting bodily injury on a person through striking the horse upon which the person is riding. Part IV, MCM 1984, para 54(c) (2) (b).

Assaults are characterized by the application, or attempted application, of unlawful force or violence to another. No lawful application of force to the person of another is a battery. Certain individuals may be justified in touching others even without their permission. One example of this would be where military police break up a fight by pulling the participants away from each other. In such a situation, the military police would be taking reasonable action to perform their duty. Similar, it is not considered a battery to touch another to attract the other's attention or to prevent injury. Part IV, MCM 1984, Para 54(c) (2) (3). United States v. Henley, 9 MJ 780 (AFCMR 1980).

For example, PVT Doe slaps PVT Roe in the face causing a bruise to his cheek. This would be an assault consummated by a battery.

The nonconsensual kissing of another constitutes an assault consummated by a battery. United States v. Server, 39 MJ 1 (CMA 1994) (Kissing, even though it generally implies a minimum use of force, is sufficient for offense of assault and battery). Spitting on another, or merely touching another's shirt or blouse without consent is sufficient to constitute assault consummated by a battery. See United States v. Bonano-Terres, 31 MJ 175, 180 (CMA 1990) (evidence that accused attempted to unbutton victim's blouse demonstrated sufficient offensive touching to amount to battery).

1. Aggravated assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. This type of aggravated assault consists of four basic elements:

A weapon is considered "dangerous" when it is used in a manner likely to produce death or grievous bodily harm. Part IV, MCM 1984, para 54(c) (4) (a) (i). The phrase "grievous bodily harm" refers to serious bodily injury beyond a black eye or a bloody nose. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other serious bodily injuries. Part IV, MCM 1984, Para 54(c) (4) (a) (iii).

The phrase "means or force" may include any means or instrumentality not normally considered a weapon. When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be said that the means or force is "likely" to produce that result. A bottle, a glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner likely to inflict death or grievous bodily harm. However, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means of force likely to produce death or grievous bodily harm, whether or not the assailant knew it was unloaded. United States v. Turner, 42 MJ 689 (ACCA 1995). Part IV, MCM 1984, para 54(c) (4) (a) (ii). This would, of course, still be an assault.

When investigating an aggravated assault with a dangerous weapon or "means or force likely," it is important to remember that it is not necessary that death or grievous bodily harm be actually inflicted. Aiming a loaded weapon at an individual without firing constitutes aggravated assault with a dangerous weapon. United States v. Cato, 17 MJ 1108 (ACMR 1984). Similarly, striking at, but missing, another's head with a pool cue or broom handle would also constitute aggravated assault with a "means likely" even though the perpetrator never hit the victim.

Another example of aggravated assault with a means or force likely to produce death or grievous bodily harm, would be a perpetrator who is HIV positive. A perpetrator who is informed he is HIV positive and who has unwarned protected or unprotected sexual intercourse with another can be convicted of aggravated assault with a means or force likely to produce death or grievous bodily harm.

In US vs. Schoolfield, 40 MJ 132 (C.M.A. 1994), the Court of Military Appeals upheld the aggravated assault of the accused who had been informed he was HIV positive. Also, his company commander counseled him on having sex and ordered him not to have sex without using "barrier protection," i.e., a condom, and without warning his prospective partner of his HIV positive status. The accused had unwarned and unprotected sexual intercourse. The Court upheld his conviction for aggravated assault with a means or force likely to inflict death or grievous bodily harm, even though the virus had not been transmitted. Further, in US vs. Joseph, 37 MJ 392 (C.M.A. 1993), the Court upheld an aggravated assault conviction under similar circumstances, except the accused used a condom. The Court held that a condom is not absolutely failsafe. Therefore, even though the accused used a condom and the victim has not tested positive for HIV, the accused's having unwarned and "protected" sexual intercourse with a partner constitutes a means or force likely to produce death or grievous bodily harm. Again, the Court upheld the accused's conviction of aggravated assault.

Also see United States vs. Reister, 40 MJ 666 (NMCMR 1994) (Unwarned and unprotected intercourse by individual with genital herpes may constitute an assault with a means likely to inflict grievous bodily harm).

2. Aggravated assault in which grievous bodily harm is intentionally inflicted. The elements of this offense are:

When grievous bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, it may be inferred that grievous bodily harm was intended. One example of this would be intentionally knocking a person off of a high level of a grandstand, so that the resulting fall breaks his leg. This would constitute an aggravated assault intentionally inflicting grievous bodily harm because the end result (the broken leg) is a very foreseeable result of pushing someone off of such a grandstand. That inference might not be drawn if a person struck another with a fist in a sidewalk fight and the victim fractured his skull by falling and striking his head against a curb. Part IV, MCM 1984, para 54(c) (4) (b) (ii).

Normally, a fist would not be a "means likely" to produce grievous bodily harm. However, if a victim is held by one or several assailants while the others beat the victim with their fists and ultimately break the victim's nose, jaw, or rib, we may infer that the injury was intentionally brought about due to the viciousness of the attack. Part IV, MCM 1984, para 54(c) (4) (b) (ii). Also, the accused was convicted of aggravated assault with a means or force likely when he struck the victim, a German cab driver, in the head knocking him to the floor. Thereafter, the accused punched the victim 8 to 13 times in the head thereby aiding in escaping from the cab driver without paying the fare. Even though the cab driver's injuries were minor and he required no medical treatment, the ACMR found under the circumstances the accused's fists constituted a means or force likely to inflict death or grievous bodily harm. US vs. Whitfield, 35 MJ 535 (ACMR 1992). Therefore, how the accused uses his fists, especially when the victim is unable to avoid being hit, and where the accused punches, i.e., in the head, will impact the finding of fists as a means or force likely to inflict grievous bodily harm.

3. Assaults on those with a particular status. Under Articles 90, 91, and 128, UCMJ, the maximum permissible punishment for certain assaults is increased when the victim has a particular status or is performing a special function at the time of the assault. Such assaults include: assault upon a commissioned, warrant, noncommissioned, or petty officer; assault upon a sentinel or lookout in the execution of duty or upon a person in the execution of law enforcement duties; and finally, assault consummated by a battery upon a child under 16 years. In situations involving assaults upon officers, noncommissioned officers, sentinels, and those in law enforcement, the government must prove the accused specifically knew that the victim enjoyed the status in question. However, in the case of assault consummated by a battery upon a child under 16 years, it is not necessary that the perpetrator know the child's age at the time of the assault.

- Has a premeditated design to kill;

- Intends to kill or inflict great bodily harm;

- Is engaged in an act which is inherently dangerous to another and displays a wanton disregard of human life; or

- Is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson.

1. Premeditated murder, Article 118(1), UCMJ. This offense consists of four elements:

A murder is not premeditated unless the thought of the killing was consciously conceived, and the act or omission by which the life was taken was intentional. Premeditated murder occurs after the accused forms a specific intent to kill someone and considers the killing. U.S. v. Vida, 26 MJ 822 (ACMR 1988). It is not necessary that the intention to kill had been entertained for any particular or considerable length of time. Part IV, MCM 1984, para 43(c) (2) (a).

2. Intentional Murder (Article 118(2), UCMJ). If an individual succeeds in convincing a military judge or court panel that premeditation was lacking and that an unlawful killing occurred spontaneously, the offense will be intentional murder. This offense is used in those instances where the accused acted either with an intent to kill or an intent at least to inflict great bodily harm. As a general rule, it may be inferred that a person intends the natural and probable consequences of his deliberate actions. Therefore, if a person deliberately does an act which is likely to result in death or great bodily injury, it may be inferred that the death or great bodily harm was intended. Part IV, MCM, 1984, para 43(c) (3) (a). With intentional murder, the intent does not need to exist for any particular length of time before the act is committed as long as it exists at the time of the killing. One example of an intentional murder would be when the perpetrator of a housebreaking shoots the owner of the premises who is trying to prevent the criminal's escape. Note since the offense is housebreaking this would not be felony murder.

3. Murder While Doing an Inherently Dangerous Act (Article 118(3), UCMJ). Also known as "wanton murder," the elements of proof for this offense are:

The accused must intentionally do an inherently dangerous act and show a wanton disregard of human life. This is characterized by one's disregard for the probable consequences of one's action or omission or indifference to the likelihood of resulting death or great bodily harm. Part IV, MCM 1984, para 43(c) (4) (a). The central theme that runs through examples of wanton murder is a total lack of concern for the safety of another person.

If an accused points a pistol at someone while believing the pistol to be unloaded, he would be guilty of involuntary manslaughter if the weapon fired and killed the victim (culpable negligence). However, if the accused pointed a weapon at the victim not knowing whether or not the weapon was loaded, and not caring, it would be a better case for wanton murder if the weapon fired, killing the victim.

Another example of wanton murder is throwing a live grenade toward another as a joke. Someone is killed when the grenade explodes. Another example is flying an airplane very low over a crowd just to watch the people scatter and killing someone in the process. Recently, some have considered it great sport to drop, a large rock, concrete block, or even a bowling ball from an overpass on an interstate highway on to passing vehicles below. The perpetrator may not intend to kill anyone in the vehicle but his act manifests a total lack of concern for safety of another. So if someone is killed it would be wanton murder.

Private Jones drives his automobile at a high rate of speed toward a crowd of people, hoping desperately that they all will be able to jump out of his way in time. However, one individual jumps late and is killed when the car hits him. Jones could be found guilty of wanton murder. Even though he specifically wanted to avoid killing anyone, his conduct was clearly dangerous to the crowd of people, was not justified, and showed a complete disregard for the probable consequences of his conduct. It is highly probable that someone would be struck and killed by the vehicle.

In order to convict the accused of wanton murder, the accused must know that death or grievous bodily harm was a probable consequence of his inherently dangerous act. This knowledge may be proven from circumstantial evidence. Part IV, MCM 1984, Para 43(c) (4) (b). There are a variety of acts which can be considered inherently dangerous. These are acts which by their very nature are likely to result in grievous bodily harm or death. In the case of United States v. Judd, 27 CMR 187 (CMA, 1958), the court of military appeals concluded that a reasonable person could find a wanton and utter disregard for life where the accused holds a loaded weapon toward his wife and child, plays with the weapon by spinning the cylinder and moving the hammer back and forth, and kills his wife when the weapon discharges.

Another example is United States v. McMonagle, 38 MJ 53 (CMA 1993). In that case the accused started a sham firefight during the invasion of Panama to cover up the loss of his pistol in an off-limits bar. The court found that indiscriminately firing a weapon in an inhabited area during a sham firefight is legally sufficient to support finding of guilt for murder while engaged in act inherently dangerous to another.

4. Felony Murder (Article 118(4), UCMJ). The final category of murder defined by Article 118, UCMJ, is felony murder. Society has always recognized that certain crimes are so dangerous that they are likely to result in the death of the victim or another. If someone is killed during the perpetration or attempted perpetration of certain offense, then the perpetrator should be held criminally liable for murder. In the military, Article 118(4) punishes those unlawful killings the accused commits while engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson.

For example, PVT Jones uses a knife to attempt to rob SPC Smith. SPC Smith resists and struggles. During the struggle, SPC Smith is killed by PVT Jones' knife. PVT Jones is guilty of felony murder committed in the course of a robbery. This is true even if, before the robbery, PVT Jones had made a conscious decision that he would not harm anyone. All that must be established is that the death was caused by the felony. United States v. Borner, 12 CMR 62 (CMA 1953). Therefore, using our example, even if Jones would have been willing to let the whole thing drop at the first sign of resistance and the fatal struggle was the result of Smith's grabbing at Jones' hand, Jones is guilty of felony murder. In another example Jones points his knife at Smith and demands his money. As a result, Smith dies on the spot of a heart attack. Jones could be found guilty of felony murder. When someone is killed by the perpetrator of one of these named offenses, it is not a defense that the killing was unintended or accidental. Part IV, MCM 1984, para 43(c) (5) (a).

Criminal responsibility for felony murder is not restricted to the actual perpetrator of the killing. The facts in Borner involved three individuals who were convicted of rape and felony murder because one of them shot and killed a man who was trying to stop the rape. The investigators could not determine who fired the fatal shot. The court upheld the murder convictions of each individual because each was guilty as a principal to the rape. Therefore, they were principals to the murder as well.

In the case of United States v. Hamer, 12 MJ 898 (ACMR 1982), Hamer and his companion, PFC Bean, agreed to rape a waitress in a restaurant in Germany. Hamer gave Bean a knife "to hold off" the restaurant manager. After the other patrons had left, Hamer went down a stairway and grabbed the waitress. While Hamer and the waitress were struggling, Bean killed the manager by beating him on the head and strangling him. Hamer and Bean then proceeded to rape the waitress. Hamer was convicted of felony murder.

On appeal Hamer argued that he should not be held liable for a murder which was committed by someone else, as Article 118(4) restricts the felony murder rule to the actual perpetrator of the killing. In rejecting Hamer's argument, the court relied on the Borner "principal" analysis and noted that the criminal intent necessary for conviction is the intent to commit the underlying felony, in this case rape.

Regarding the capital punishment provision of the felony murder rule, the United States Supreme Court has held that to impose the death penalty for felony murder, the accused must have either killed or have had the intent to kill. Edmund v. Florida, 458US782, 102SCt3368, 73 L.ED.2D 1140 (1982). The Manual for Courts-Martial, however, only allows for the death penalty if the accused was the actual perpetrator of the killing. Part II, MCM 1984, RCM 1004(c) (8).

1. Voluntary Manslaughter (Article 119(1), UCMJ). An unlawful killing, even though it is done with an intent to kill or inflict great bodily harm, will not be murder if it is committed in the heat of sudden passion caused by adequate provocation. Part IV, MCM 1984, Para 44(c) (1). This heat of passion may result from fear or rage. A person may be provoked to such an extent that in the heat of sudden passion caused by the provocation, a fatal blow is struck before self-control has returned. Although adequate provocation does not excuse the homicide, it does reduce it from murder to voluntary manslaughter. The provocation must be sufficient to excite uncontrollable passion in the mind of a reasonable person. The rage must continue throughout the attack. United States v. Seeloff, 15 MJ 978 (ACMR 1983).

The key is whether this provocation was sufficient to send a reasonable person into an uncontrollable rage. The provocation must neither be sought by the accused nor induced by the accused as an excuse for killing or doing harm. There must also be suddenness of passion. If a reasonable person would have had sufficient time to "cool off" between the provocation and the killing, the offense is murder. Part IV, MCM 1984, para 44(c) (1) (b). Examples of acts which may, constitute adequate provocation are the unlawful infliction of great bodily harm, unlawful imprisonment, and the sight by one spouse of an act of adultery committed by the other spouse. Insulting or abusive words or gestures, a slight blow with the hand or fist, and trespass or other injury to property are not, standing alone, adequate provocation.

The appellant was peaceably watching television in his own room when SPC Speed entered without invitation, opened the appellant's refrigerator, and consumed one of his drinks. Furthermore, the conduct was accompanied by loud and abusive remarks about the appellant. When these events led to a confrontation and shoving match that the appellant broke off, SPC Speed attacked the appellant from the rear, threw him down on the bed, began to choke him, and then subdued and humiliated him in front of other soldiers. The appellant then retreated to his corner of the room where he sat on his bed. He was again confronted by the swaggering and foul-mouthed SPC Speed who taunted him by calling him 'all sorts of names.' Specialist Speed asked, 'What are you going to do mother ----, and f--- you, what are you going to do, chicken ----?' He also challenged the appellant, 'Do you want me to teach you a lesson.' All of these epithets were delivered by SPC Speed while he stood adjacent to the appellant's bed and while he leaned over in the appellant's face in a menacing manner. Id. at 651-652.

The appellant then stabbed SPC Speed once in the heart, killing him. Id. at 650. Saulsberry was convicted at court-martial of unpremeditated murder, but the Army court found the evidence "sufficient to support only a conviction for voluntary manslaughter." Id. at 649. The court reasoned "that these provocations were adequate to provoke uncontrollable rage, fear and passion in a reasonable person. Thus, the conviction for unpremeditated murder cannot stand." Id. at 652.

2. Involuntary Manslaughter (Article 119(b) (2), UCMJ). Involuntary manslaughter can be committed in one of two ways: through culpable negligence or by causing a death while committing or attempting to commit an offense directly affecting the person, other than burglary, sodomy, rape, robbery, or aggravated arson. Note that these are the five offenses covered in the felony murder rule. As the Manual for Courts-Martial points out, culpable negligence is a degree of carelessness greater than simple negligence. It is a negligent act or omission which is accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. Part IV, MCM 1984, Para 44(c) (2) (e).

It would be culpable negligence to conduct target practice in such a negligent fashion that bullets are being fired toward an inhabited house within range resulting in the killing of an occupant. Another example of culpable negligence is a killing after pointing a pistol toward another as a joke and pulling the trigger believing, but without taking reasonable precaution to ascertain, that the pistol is unloaded. Also, a death resulting from carelessly leaving poisons or dangerous drugs where they may endanger a life could constitute culpable negligence. Part IV, MCM 1984, part 44(c) (2) (a).

In all of these scenarios, the person's behavior goes beyond simple negligence. In other words, the conduct is higher in magnitude than simple negligence, but falls short of intentional wrong. United States v. Riggleman, 3 CMR 70 (CMA 1952); United States v. Vaught, 49 CMR 747 (AFCMR 1975). Death is a foreseeable consequence, but not a probable one. If death is probable, the accused may be charged with wanton murder.

Using this standard, an accused could be convicted of involuntary manslaughter for the culpably negligent action of striking his four-month old daughter repeatedly because she would not stop crying while he was changing her diaper. United States v. Mitchell, 12 MJ 1015 (ACMR 1982). In Mitchell, the blows were of sufficient force to fracture the child's skull and cause a fatal brain hemorrhage. Under these circumstances, the court reasoned, the act of striking the child to stop the crying was done in a culpably negligent manner. It should be noted that the accused was withdrawing from heroin to which he was addicted at the time he killed his girlfriend's baby.

The furnishing of a restricted drug is an act which is inherently dangerous to human life. United States v. Moglia, 3 MJ 216, 217 (CMA, 1977). Therefore, the furnishing and assistance in the injection of drugs can be the basis of an involuntary manslaughter charge if a death occurs from the acts. In the case of United States vs. Ninkel, 13 MJ 400 (CMA 1982), the accused and three other soldiers were in the barracks room "cutting" and "shooting up" heroin. In addition to injecting himself, the accused injected a Specialist Soukup, at Soukup's request. Another individual, Specialist Steele, entered the room. Steele purchased a quantity of heroin from one of the group, "snorted" it, and complained that he was not getting "high" enough. He purchased some more heroin, and Soukup attempted to inject the substance into Steele's arm. However, Soukup was unable to find a vein whereupon the defendant held Steele's arm which permitted the shot to be administered. As a result of the injection, Steele died. In affirming the accused's conviction for involuntary manslaughter, the court observed that the defendant knew that the deceased had already snorted heroin, but he did not know that the deceased had earlier been drinking alcoholic beverages. Nevertheless, the defendant admitted that he was culpably negligent, because it was foreseeable that the deceased might overdose on heroin and die. Also, he admitted that the injection of heroin was the actual cause of death. United States v. Ninkel, 13 MJ 400, 401 (CMA 1982).

One of the most common charges of involuntary manslaughter based on culpable negligence arises when the accused drives while drunk and thereby causes the death of another. Driving drunk is culpable negligence, more than simple negligence. The accused did not intend to kill anyone when he drove drunk, but death to others is a foreseeable consequence of drunk driving.

Regarding omissions, it should be noted that where there is no duty to act, there can be no negligence. Part IV, MCM 1984, para 44(c) (2) (a). Therefore, if a stranger makes no effort to save a drowning person or allows a shelter challenged person to freeze or starve to death, no crime has been committed, since no legal duty to assist existed.

Therefore, if a stranger makes no effort to save a drowning person or allows a shelter challenged person to freeze or starve to death, no crime has been committed, since no legal duty to assist existed.

The other type of involuntary manslaughter involves deaths which occur during an offense directly affecting the person other than those offenses dealt with under our felony murder statute (i.e., burglary, sodomy, rape, robbery, or aggravated arson). An "offense directly affecting the person" means one affecting some particular person as rather than an offense affecting society in general. Examples of offenses directly affecting the person include the various types of assault, battery, false imprisonment, and voluntary engagement in an affray. Part IV, MCM 1984, para 44(c) (2) (b). In United States v. Madison, 34 CMR 435 (CMA 1964), the accused pointed a gun in the direction of an individual to scare him. When the hammer started to slip out from under the accused's thumb, he "swung his arm around," and the gun fired killing his wife. In affirming the conviction for involuntary manslaughter, the court noted that since the accused had no justification or excuse to point the gun at anyone, the initial action of trying to scare his intended victim amounted to an assault by attempt with a loaded weapon. Accordingly, a death resulting from the unintentional discharge of a gun used in committing an assault by attempt is involuntary manslaughter.

Another example of death resulting during the commission of one of the stated offenses involves assault consummated by a battery on the victim. The accused got into an argument with the victim. The accused unlawfully pushed the victim to the floor. The victim fell to the floor fracturing his skull on a brick fireplace hearth. He later died from this skull fracture. The accused did not intend to kill the victim, but merely pushed him during an argument that turned into a "push and shove match." However, since the death took place during the perpetration of an assault consummated by a battery, the accused can be convicted of the second type of involuntary manslaughter.

1. The accused committed an act of sexual intercourse with another person; and

2. The act of sexual intercourse was done by force and without that person's consent.

Regarding the element of intercourse, any penetration, however slight, is sufficient to complete this offense. Part IV, MCM 1984, para 45(c) (1) (a). Evidence of penetration may be obtained through the victim's testimony or medical testimony or both.

The Court of Military Appeals upheld a rape conviction applying a similar concept to the issue of force and without consent. In US vs. Clark, 35 MJ 432 (C.M.A. 1992), the accused, a Sergeant First Class mess sergeant, was in charge of the victim, a newly assigned female private who had just arrived at the mess hall from AIT. While on duty, he ordered her to accompany him to a storage shed behind the mess hall to get some supplies. Once in the shed, the accused closed the door and positioned himself between the private and the door. He approached her asking for sex. She backed up to the wall while saying "no" to his request. Thereafter, he had sexual intercourse with her over her verbal protests. The Court gave great weight to the accused's senior NCO status and the victim's status as his subordinate and a junior soldier right out of AIT in holding the victim had reasonably resisted the accused's attack. Therefore, the Court found the sexual intercourse was by force and without the victim's consent. His rape conviction was upheld. You should note that not all cases involving differences in rank between the accused and the victim will automatically establish reasonable resistance. But this is one factor the courts will analyze.

If the victim is in possession of mental and physical faculties and fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.

In United States v. Webster, 40 MJ 384 (CMA 1994), the Court of Military Appeals stated "in United States v. Bonano-Torres, 31 MJ 175, 179 (CMA 1990), this court expressly declined to adopt 'an inflexible rule establishing resistance as a necessary element of' rape... In United States v. Watson, 31 MJ 49 (CMA 1990), this court similarly held that proof of a 'manifestation of lack of consent' does not require 'some positive' action or response by the victim... (The Court) rejected a notion that the rape victim had 'an independent, affirmative duty' to resist an attacker in order to prove the element of lack of consent." The Court now looks at the "totality of the Circumstances" to determine consent or lack thereof and the appropriate level or measure of resistance by the victim.

1. That the accused assaulted a certain person not the spouse of the accused in a certain manner;

2. That the acts were done with the intent of gratifying the lust or sexual desires of the accused; and

3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

1. That the accused committed a certain wrongful act with a certain person;

2. That the act was indecent; and

3. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

1. That the accused communicated certain language expressing a present determination of intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;

2. That the communication was made known to that person or to a third person;

3. That the communication was wrongful; and

4. That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

1. That the accused wrongfully took, obtained, or withheld certain property from the possession of the owner or of any other person;

2. That the property belonged to a certain person;

3. That the property was of a certain value, or of some value; and

4. That the taking, obtaining, or withholding by the accused was done with the intent to permanently deprive or defraud another person of the use and benefit of the property or to permanently appropriate the property for the use of the accused or for any person other than the owner.

If the property is alleged to be military property, there is a fifth element, requiring the government to also prove that the property was military property. This fifth element, if proven, is an element in aggravation which will increase the maximum punishment for the offense.

In order for there to be a larceny, there must be a taking, obtaining, or withholding of the property by the thief. In order for there to be a wrongful taking, the accused must exercise some sort of dominion (ownership) or control over the item and there must be some sort of "carrying away" of the property. There would be no taking if the property in question was connected to a building by a chain, and the property had not been disconnected from the building.

1. The elements of this crime are as follows:

2. Any act placing the claim in official channels constitutes making a claim, even if that act does not amount to presenting a claim. It is not necessary that the claim be allowed or paid.

1. This is different from the offense of making a false claim. The elements are:

2. The definition of false or fraudulent is the same as that in the discussion of making a false claim.

3. The claim must be presented, directly or indirectly, to some person having authority to pay it. The person to whom the claim is presented may be identified by position or authority to approve the claim, and need not be identified by name in the specification. A false claim may be tacitly presented, as when a person who knows that there is no entitlement to certain pay accepts it nevertheless without disclosing a disqualification. In this case the accused would not have to make any representation of entitlement to the pay before he could be convicted of this offense. For example, PVT Ludlow cashed a pay check which included an amount for a dependency allowance. He knew at the time that he was not entitled to this allowance. When he cashed the check, he tacitly presented a false claim. Part IV, MCM, 1984, para 58c(2) (b).

1. That the accused made or used a certain writing or other paper;

2. That certain material statements in the writing or other paper were false or fraudulent;

3. That the accused then knew the statements were false or fraudulent; and

4. That the act of the accused was for the purpose of obtaining the approval, allowance, or payment of a certain claim or claims against the United States or an officer thereof.

1. That the accused made an oath to a certain fact or to a certain writing or other paper;

2. That the oath was false in certain particulars;

3. That the accused then knew it was false; and

4. That the act was for the purpose of obtaining the approval, allowance, or payment of a certain claim or claims against the United States or an officer thereof.

1. That the accused used the forged or counterfeited the signature of a certain person or a certain writing or other paper; and

2. that the act was for the purpose of obtaining the approval, allowance, or payment of a certain claim against the United States or an officer thereof.

1. Avoid Assumptions--Prove it. When putting together the proof, do not assume the elements--prove them. Avoid saying "I know that is true," or "of course that is true, everyone knows that," or "we can assume that." This may not be true. The judge may not share your outlook, or your assumptions. Do not rely on conclusions, rely on evidence and proof. Do not say "I now it's true because witness X told me so the other day." If that is what happened, get a statement from witness X. Make you own statement as to what witness X told you. In cases where you interview people over the telephone, write up MFRs or AIRs reflecting the substance of the conversation. The trial counsel will want statements and evidence on all of the elements. Two months later, at trial, the witness may "forget" ever having talked to you, or may contradict what you say, or may contradict what you say he said earlier. You may be the government's only evidence to substantiate what really happened. Do not just rely on your memory.

If you have a case involving illegal possession of a firearm, the prosecutor does not necessarily want to carry around two World War II submachine guns. Take pictures of them and write a statement describing them and their condition. Are they operable? Find out and say so. Do not assume they are. Are they even real? Find out and avoid some real embarrassment at trial. Check them out and write a brief MFR stating they are in good mechanical working order. The key is documenting what you do. Similarly, if your case involves a museum curator who has allegedly stolen some 100-year-old dresses, photograph them. Also, determine their value. Don't assume they're valuable just because they're old. Remember, don't assume--prove your case.

2. Document Everything.

3. Don't Underestimate the Case. If we are dealing with a false claim, you need to understand the claims process. Approaching a case of contract fraud without an understanding of the procurement system is not likely to produce any success. Therefore, discuss the "system" with a knowledgeable expert who will guide you through the process and give you a better understanding of that system.

4. Don't Underestimate the Suspect. Remember the nature of the case and the level of intelligence and sophistication of the witness. Interviews can easily produce misleading information and clever interviewees can create exculpatory information. The suspect may have a PhD and may be an expert in computer science, American history, etc. Do not hesitate to bring agency personnel into the investigation. They can, of course, pinpoint areas of suspicious activity upon which you will focus your investigation.

5. Coordinate with JAG. Understand that you have to sell the case to JAG. You may have lived with the case for quite some time, and may be very familiar with all of its intricacies. The trial counsel, however, may know nothing of it until you walk into his office. He will not know the background of what led to the investigation or what you have discovered. You, therefore, need to package the case for him also. You need to put the investigative effort into a format that makes sense. Remember that YOU are the expert investigator. A sloppy product will most probably result in equally inferior results.

It is absolutely essential for you to work with the prosecutor. He is going to have to take the case into court and win with it. If he wants more witness interviews, conduct them. Do not delay and ignore him. A poor relationship between the two of you will prove disastrous for everyone, but the accused.

Coordination with the prosecutor does not simply mean that you walk into his office one afternoon and drop 15 volumes of documents on his desk, asking him to determine if any crimes were committed. He does not have two weeks to try to reinvent the wheel by redoing all that you already have done. You need to sit down and discuss the case with him. This may take some time, but it will be time well spent. In some cases, you and the prosecutor may spend entire weeks, even months, working together on a case. Simply dropping the volumes on his desk is likely to accomplish little. It will probably produce a negative reaction against you. He may feel that if you are too busy to bother discussing the case with him, then HE is too busy to waste time reading the documents. The result may be that nothing is accomplished. He may give the case a superficial examination but, without the background and analysis that you could provide, he may not see what you see. The suspect may be dramatically undercharged and may escape with an incredibly favorable pretrial agreement. He may not even be prosecuted at all.

6. Seriousness of the Offenses.

1. Who may be liable for an offense?

2. Aider and Abettor. If one is not a perpetrator, in order to be guilty of an offense committed by the perpetrator, the accused must:

3. Criminal Liability of the Principal. Once guilt as a principal is established, a principal is liable not only for the offenses that he helped to commit, but he is also liable for any offense which any other principal commits which is a natural and probable consequence of the original intended offense.

1. Act. To constitute an attempt, there must be a specific intent to commit a particular offense. Both the UCMJ and the Manual for Courts-Martial (MCM) require that the specific intent to commit the offense be accompanied by an act. The primary difficulty encountered in the law of attempts is in determining the exact nature of the necessary act. Article 80 describes the act as one which goes beyond preparatory steps, is a direct movement toward the commission of the offense, and need not be the last act essential to the consummation of the offense. Part IV, MCM, 1984, Article 80, para c(2). This question is one of fact which must be determined in each case.

In United States v. Sampson, 7 MJ 513 (ACMR 1979), the acts of breaking and entering the victim's quarters while nude, approaching the nude female occupant, and reaching in the direction of the victim's neck and shoulder were held to be sufficient acts for attempted rape.

In U.S. v. St. Fort, 26 MJ 764 (ACMR 1988), a husband "returned home unexpectedly one night to discover his wife clad only in a bathrobe and appellant hiding naked in a closet. The appellant fled into the street." The court held that he "intended to engage in sexual intercourse with a woman not his wife and that he had taken substantial steps beyond mere preparation towards accomplishing this offense." He was, then, guilty of attempted adultery.

The basic difficulty in determining whether there has been an attempted crime is determining whether there has been an act sufficient to satisfy the MCM requirement that the act needs to go beyond "mere preparation." Therefore, it is necessary to examine this point more closely.

In the case of United States v. Thomas, 32 CMR 278 (CMA 1962) the accused and two of his companions committed sexual intercourse with a female, whom they believed to be unconscious, under circumstances amounting to rape. In actuality, the female was dead at the time the intercourse was committed. On appeal, the accused's conviction for attempted rape was affirmed on the principle that although a dead person cannot be raped, the accused intended to commit an act which amounted to rape, and the accused also performed an overt act toward the crime's commission. Finally, the court concluded that this was an attempted rape because had the facts been as the accused believed them to be (that the female was alive) he could have been convicted of rape.

Another example of the issue of factual impossibility arises when the accused sees an unconscious acquaintance with a hypodermic needle and syringe lying at his side and proceeds to destroy the needle and syringe in an effort to prevent the acquaintance from being prosecuted for use and possession of narcotics, not knowing that the acquaintance is, in fact, dead. In such a case, although the accused cannot be found guilty of accessory after the fact in violation of Article 78, UCMJ, he may be found guilty of attempted accessory after the fact because the accused believed that the individual was alive at the time the needle and syringe were destroyed. United States v. Wilson, 7 MJ 997 (ACMR 1979).

The policy behind convicting an accused in situations of factual impossibility is the accused has demonstrated that he is a dangerous person whose intent is just as criminal as it would have been had the facts been as he believed them to be.

2. Specific Intent. Attempts are specific intent crimes. The accused is only liable for an attempt if he specifically intended to commit the crime.

1. The Agreement. The agreement in a conspiracy does not have to be in any particular form and it does not have to be manifested by any formal words. It is sufficient if the minds of the parties arrive at a common understanding to commit a crime. The agreement does not have to specifically state the way the conspiracy will be accomplished or what part each conspirator is to play. Part IV, MCM, 1984, para 5c(2).

2. Overt Act. Besides the agreement, an overt act done by one or more of the conspirators at the time of or following the agreement is necessary to complete the offense. U.S. v. Johnson, 25 MJ 8789 (NMCMR 1988). Unlike an attempt, the overt act necessary to complete a conspiracy does not have to be beyond mere preparation.

The overt act itself does not have to be illegal, but it does have to be a manifestation that the agreement is being executed. Any overt act is enough, no matter how preliminary or preparatory in nature as long as it demonstrates that the agreement is being set into motion. An example would be purchasing a crowbar with which to break and enter a store. Such an act would be a sufficient overt act to sustain a conviction of conspiracy to commit larceny. United States v. Choat, 21 CMR 313 (CMA 1956).

3. Criminal Liability.

4. Termination of the Conspiracy.

The longer a conspiracy has gone on, the greater the likelihood that additional people may have joined it, thus broadening the focus of an investigation. Additionally, since the statute of limitations on a particular crime does not normally begin to run until after a crime is complete, pinpointing the end of the conspiracy might determine whether the individual may be prosecuted for the crime at all. Finally, statements made by conspirators against each other may be admissible, as long as they were made while the conspiracy was still in progress.

A person cannot be convicted of conspiracy if he effectively withdraws before an overt act is committed. Part IV, para 5c(6), (MCM 1984) If a conspirator withdraws from the conspiracy after the performance of an overt act by one of the coconspirators, he remains guilty of conspiracy and guilty of any offenses which were committed in furtherance of the conspiracy by the other conspirators up to the time of the withdrawal. However, he is not liable for offenses committed by the remaining conspirators after his withdrawal. Part IV, MCM, 1984, para 5c(6).

Withdrawal from a criminal conspiracy requires an affirmative act sufficient to show the individual desires to disassociate himself with the conspiracy. Mere passive noninvolvement in the final stages of the crime is insufficient to constitute a withdrawal from the conspiracy. United States v. Murphy, CM 435, 280 (ACMR, 19 Oct 78). Withdrawal requires conduct that is totally inconsistent with adherence to the conspiracy, and which shows that the individual has severed all connection with it. A conspirator can effectively withdraw from a conspiracy by reporting it to command or law enforcement authorities. Part IV, MCM, 1984, para 5c(6).

5. Punishment. An individual subject to the UCMJ who is found guilty of conspiracy is subject to the maximum punishment for the offense which is the object of the conspiracy. However, the death penalty may not be imposed. Part IV, MCM, 1984, para 5(e).

Conspiracy and the substantive offense which is the object of the conspiracy are separately punishable. The philosophy for this rule was set forth by the Supreme Court in Callanan v. United States, 364 U.S. 587, 81 SCt 321, 5LEd2d 312 (1961). Rehearing denied 365US 825, 81 SCt 687, 5 LEd2d 703 (1961).

Because of this, conspiracies are held to be specifically punishable because of the added danger they pose to society.

1. Homicide or assault cases involving deadly force. It is a defense to a homicide, assault involving deadly force, or battery involving deadly force that the accused:

2. Use of nondeadly force. The elements here are: (1) that the accused apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on him; and (2) that the accused believed that the force used "was necessary for protection against bodily harm, provided that the force used by the accused was less than force reasonably likely to produce death or grievous bodily harm." RCM 916(e) (3) Self-defense, then, may be used against the lesser forms of assault. U.S. v. Sawyer, 4 MJ 64 (CMA 1977).

A good example is U.S. v. Jones, 3 MJ 279 (CMA 1977). The assailant hit the accused in the face. The accused responded by hitting the assailant...who died. Although the accused didn't fear death or grievous bodily harm, he was still acting in self-defense. Since the accused acted lawfully, by using nondeadly force to repel an assault consummated by a battery, he could not be convicted of any offense causing the victim's death.

3. Loss of right to self-defense. "The right to self-defense is lost" and these defenses do not apply "if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension." Self-defense is available to the accused in these situations, if he "had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred." RCM 916(e) (4).

4. Parental Discipline Defense.

There have been several cases involving soldiers convicted of assault on a child under age 16 in violation of Article 128, UCMJ, when the accused is the parent or step-parent of the victim. The accused has raised the parental discipline defense arguing that his action was a legitimate exercise of his parental authority. Before this defense will be successful, the court must find that the accused was the child's parent, guardian, or someone else responsible for general care and supervision of the child, or someone acting at the request of the parent or guardian. Secondly, the accused must have used force to safeguard or promote the child's welfare including actions to prevent or punish the child's misconduct. Thus, the accused must have had a proper disciplinary motive when he struck the child. Finally, the accused must have used the proper degree of force in disciplining the child. An improper degree of force is one designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, extreme mental distress, or gross degradation. US vs. Robertson, 36 MJ 190 (C.M.A. 1992) and US vs. Brown, 26 MJ 148 (C.M.A. 1988).

The accused's seven year old daughter got up from her nap, went through her mother's possessions, and sprayed her mother's perfume on a bed pillow. The Court found the accused as her father was the proper party to discipline her and that he had a legitimate parental disciplinary purpose in punishing his daughter for her misconduct. However, the Court found he used unreasonable force when he used a belt and struck her hard on her buttocks numerous times. The next day she refused to sit down at school. The pediatrician who examined her felt the injuries warranted an X-ray to determine how extensive her injuries were. The accused's assault conviction was upheld. US vs. Robertson, 36 MJ 190 (C.M.A. 1992). In another case, the accused "whipped" his seven year old stepson with a belt for stealing a quarter from his teacher's desk. This produced welts and "bad bruising" on the child. The Court found that, while the accused was the proper disciplinary party and the child properly needed discipline, the method employed was excessive force. The accused's conviction was upheld. US vs. Brown, 26 MJ 148 (C.M.A. 1988).

In US vs. Ward, 39 MJ 1085 (ACMR 1994), the mother left her 3 year old son in the care of the accused who was her boyfriend. The child knocked over a candle, but when confronted he denied culpability. The accused spanked him on his buttocks with his hand. Then two or three times the accused asked the child if he knocked over the candle. After each negative response, the accused slapped the child in the face. The Court found the accused to be a proper disciplinary party as the agent of the mother. Further, the Court held the accused had a proper disciplinary motive based on the child's misconduct. Moreover, the Court found that the accused used the proper degree of force in spanking the child on his buttocks. However, at trial a medical doctor testified that he slapped the child on his face with such significant force that the child could have been knocked off his feet. The Court concluded by finding that in this regard the accused used "excessive force" known to create a substantial risk of causing serious bodily injury, extreme pain, or mental distress. Therefore, the Court affirmed his conviction of assault by slapping the child in the face.

In US vs. Ziots, 36 MJ 1007, (ACMR 1993), the Court found that the accused used excessive force in disciplining his three year old stepson even though he acted out of a proper parental disciplinary motive. When the child refused to put away his toys when told to do so and talked back to the accused, he grabbed the child's cheeks and squeezed. As the child squirmed, the accused squeezed harder. Later, the child denied taking out a grease gun and squirting grease on the floor. For these acts of misconduct, the accused hit the child with his fist in the face near his eyes and on his back four times. As the child squirms, the accused hit him in the rib cage. The accused then told his stepson to stand in the corner for a specified period. The child stood for a while, but strayed away from the corner. As punishment for this misconduct, the accused pushed the child back into the corner causing him to hit his head and stomach on the wall. On the basis of this evidence, the Court upheld the accused's conviction for assault.

In US vs. Gowadia, 34 MJ 714 (ACMR 1992), the Court found the accused properly disciplined his twelve year old stepson by striking him on the back of his legs with a military uniform belt with the buckle and metal tip removed. However, the Court upheld the accused's aggravated assault conviction on the same child based on the accused's unusual "counseling techniques." The accused was properly counseling his stepson for poor school performance and failure to complete his assigned chores. When the child failed to respond appropriately, the accused became frustrated. With the assistance of his wife, he tied up the child's hands and feet and placed a plastic bag over his head for a "short time." Thereafter, he removed the bag and the restraints and continued the counseling. The actions went beyond reasonable and moderate force necessary for parental discipline the Court concluded.

Finally, in US vs. Scofield, 33 MJ 857 (ACMR 1991), the accused disciplined his eight year old son who repeatedly came home late from school. With each violation, the accused gradually increased the degree of punishment. At first he spoke to his son. Then he sent him to bed early. Eventually, he withheld certain privileges from his son. These disciplinary measures were unsuccessful. As a result, when the child came home from school late the last time, the accused spanked him on the buttocks and thighs between six and ten times with a leather belt. Meanwhile, the accused's seven year old daughter stole earrings from her babysitter and denied any involvement in the theft. After she too failed to respond appropriately to other corrective action, the accused used the leather belt on her buttocks and thighs. The Court found the accused acted with a proper disciplinary motive with both his children. Further, the Court found no evidence of serious injury or bruises as a result of this discipline. His actions did not create a substantial risk of excessive injury. Therefore, the Court set aside the accused's assault convictions.

The courts in all these cases resolve the use of force issue by looking at the age of the child, where and with what did the accused hit the child, and what he used to strike the child.