pelled to retreat, an assault has been committed. And if that prospective contact assumes the form of a cutting or stabbing with a knife in most uses a dangerous weapon-an aggravated assault has been committed. The form of the foreseeable contact, that is, whether it in fact involves a means likely to produce "death or grievous bodily harm," is the determinant as to aggravation. The element of distance is material in these premises only in deciding whether any assault was committed. [Latimer, J., dissented with respect to the finding of aggravated assault.] United States v. Smith (No. 2642), 4 USCMA 41, 15 CMR 41.

[See 4 Am Jur, Assault and Battery §§ 17, 34.]

§ 49.1. Generally.

§ 49. Self-Defense

For purposes of self-defense, a soldier's bed and the area immediately adjacent thereto in the barracks should be deemed his "home." He need not retreat if attacked there. (Citing ACM 4351, Gosnell, 3 CMR 646; State v. McPherson, 114 Minn 498, 131 NW 645 (1911); Hutcherson v. State, 165 Ala 16, 30 So 1027 (1909); Jones v. State, 76 Ala 8 (1884); CM 354324, Heck, 6 CMR 223.) CM 371618, Ital (1954) 15 CMR 514.

§ 49.11. Resisting unlawful arrest or excessive force in effecting arrest.

The accused was found guilty of assault intentionally inflicting grievous bodily harm. The accused and his fiancee were in a barroom and the accused had not created any disturbance and was in fact sleeping. Just before the arrival of two MP's, the accused's fiancee, in attempting to waken him, knocked a stool from under him and he fell to the floor. When the MP's entered and saw him on the floor they attempted to pick him up and he hit one of them. The MP testified that he did not know whether the blow was intentional but took it as intentional. The accused claimed he was merely trying to brush him off. In any event the MP's began to beat the accused with their billy clubs. The accused called for someone to get the MP's and was then told by those beating him that they were the MP's. At this time the accused was informed that he was under apprehension. After this the accused quieted down and one of the MP's applied an arm lock. The accused resented this treatment and attempted to resist and another session of "subduing" with the billy clubs followed. The accused was then held in another arm lock and was run down the stairs. At the foot of the stairs a club was broken while being used on the accused and while the accused was lying on the ground one MP sat on him and clubbed him on the shins. While in this position the accused in some manner got hold of the MP's pistol and in the struggle for the pistol it was discharged shooting the MP in the finger. Held: The evidence of record sustains the accused's contention that he acted in justified self-defense. The right of self-defense generally exists in sudden and violent cases where delay would put the party in immediate danger of loss of life or great bodily harm. (Citing U. S. v. Ginn (No. 263), 1 USCMA

453, 4 CMR 45, 49; People v. Flemming, 218 Cal 300, 23 P2d 28; Commonwealth v. Digeso, 254 Pa 291, 98 A 88; People v. Motuzas, 352 I11 340, 185 NE 614; Warren, Homicide 1938 ed, sec 154; Wharton, Criminal Law, 12th ed, sec 613.) The general rule of law in the case of self-defense against the excessive force utilized by a police officer is that an officer seeking to make an arrest has no right to use more force than is reasonably necessary to subject the person sought to be arrested to his authority. Where he goes further and uses unnecessary force, the relations between the parties are the same as those between private individuals; and if the person sought to be arrested believes, and has reason to believe, that he is in danger of being killed, or of receiving great bodily harm, he may defend himself even to the point of taking the life of the officer. (Citing 13 RCL, sec 175, p 873; Brown v. State, 62 NJ Law 666, 42 A 811.) CM 364839, Barker (1953) 12 CMR 244.

[26 Am Jur, Homicide § 229.]

The accused was charged with assaulting a German girl and three German policemen "then in the execution of civil law enforcement duties" by kicking policemen H. and S. on the body and by biting policeman W. on the arm. He was also charged with resisting lawful apprehension by these German police officers. The evidence showed that the three policemen, observing an altercation between the accused and a German girl which culminated in the felling of the girl by a blow of accused's fist, intervened to prevent further injury to her. While being pulled away from the girl, the accused struck policemen W. and S. and kicked the latter in the leg. The victim having retired to the other side of the street, the three policemen then seized the accused and, despite his struggles, forcibly took him to their patrol car, intending to hold him for the military police. The accused escaped therefrom by biting and kicking policeman W. Held: German police officials have no legal authority under international law or the Occupation Statute to exercise jurisdiction over or arrest members of the occupation force and hence no "civil law enforcement duties" in connection therewith. Under the occupation statute the Allied Powers expressly reserved all powers in the field of the protection, prestige and security of their armed forces in Western Germany. In furtherance of these reserved powers there was in effect on the date of the alleged offenses a directive issued by the United States High Commissioner for Germany providing in substance that the German police shall be denied all jurisdiction or power of arrest over military personnel of the allied forces.

(See

7456

sec 2(e), Occupation Statute, 21 September 1949, 14 Fed Reg and sec P6-510, Policy Directive No. P-6, Office of the United

States High Commissioner for Germany, 1 July 1952.) However, such officials are under a legal duty to protect persons under their jurisdiction and within their call from the acts of an assailant, using such force as is necessary under the circumstances to discharge that duty.

Applying the foregoing principles, that portion of the assault committed by the accused which occurred while the three German police officers were intervening to prevent accused further injuring a German girl were committed while the policemen were in the execution of

their law enforcement duties. The assaults which occurred while accused was endeavoring to free himself from unlawful restraint and his resisting efforts to apprehend him were justified in that a person being subjected to unlawful restraint of his liberty has the right to use the same force in defending himself as he would employ against any other unlawful intrusion on his person or liberty regardless of whether he knew the officer had no right to arrest him. (Citing Note, 33 LRA (NS) 151-154 and cases cited therein; Note, 5 LRA (NS) 1016-1018, 1 Wharton's Criminal Law, 12th ed, sec 851-854, pp 1148-1152; Clark and Marshall, Law of Crimes, 5th ed, sec 209, p 281; Bishop's Criminal Law, 9th ed, vol 1, sec 440 (3), p 318; id. vol 2, sec 868(2), pp 616–617; 4 Am Jur, Assault and Battery § 41, p 148; cf. MCM, 1951, subpar 174a, p 327.) The charge of resisting arrest must therefore be disapproved.

The assault charges alleged that the accused kicked the two policemen and bit the third one. The evidence surrounding that portion of the assault which related to the protection of the German girl shows that the accused kicked only policeman S. There was no evidence of kicking H. or biting W. (as charged) during this phase of the assault. Although the evidence shows that accused assaulted W. by striking him while he was going to the defense of the girl, an assault by striking is not included in the charge of assault by kicking and the accused cannot be found guilty of this latter offense (citing CM 340162, Bonventre, 6 BR-JC 29, 31; CM 360145, Amato et al, 9 CMR 416). Accordingly, the charges covering assaults upon policemen H. and S. must be disapproved for lack of evidence.

The findings of guilty of assaulting the German girl and policeman S. only are affirmed. CM 369603, Ramos (1954) 15 CMR 455.

§ 61.1. Generally.

IV. PROSECUTION

A. IN GENERAL

§ 61. Charges and Specifications

The specification on which the accused was brought to trial alleged that the accused, in violation of UCMJ, Art 91, did, at a certain named place on or about a certain date, strike a named staff sergeant, his superior noncommissioned officer, who was then in the execution of his office, by hitting him in the face with his fist. The specification did not contain the term "assault" or the allegation that the striking was "unlawful". The findings of guilty of the offense charged were disapproved because of the failure of the president to instruct on the effect of intoxication. Held: The board may excise from the specification the aggravating factor of the status of the individual struck by the accused and affirm findings of guilty of assault consummated by a battery in violation of UCMJ, Art 128, notwithstanding the fact that the specification did not contain the words quoted above since the Code provides for either striking or assaulting and Congress did not intend to proscribe a lawful striking. A striking properly alleged is impliedly an unlawful striking. (Citing ACM 5087, Carter, 5 CMR

565; CM 362871, Harrington, 10 CMR 332; MCM, 1951, pars 169a and 170a and b; model specification 25, MCM, 1951, app 6c. Distinguishing ACM S-2860, Priester, 4 CMR 830.) ACM S-8411, Niemic (1954) 14 CMR 813.

$ 63.5. Dangerous or deadly character of weapon.

A specification alleging that the accused assaulted a superior noncommissioned officer "by striking at him with a pocket knife" sufficiently alleges an assault with a dangerous weapon so as to apprise the accused as to the nature of the charge, even though the "dangerous" character of the instrument is not expressly alleged, since a pocket knife may, according to the circumstances and manner of its use, constitute a dangerous weapon per se. (Citing Dollarhide

V. United States (1843, Ia) 39 Am Dec 460.) CM 361544, Rhea (1953) 10 CMR 268.

863.13. Negligence or culpable negligence.

The accused was charged with an assault by "negligently" shooting acertain person with a dangerous weapon. Held: In the absence of a general intent to do bodily harm, a culpably negligent act or omission is necessary to support a charge of assault (MCM, 1951, par 207a, pp 369-371; CM 362712, Allen, 10 CMR 424). Accordingly, by use of the word "negligently," which imports no more than simple negligence (MCM, 1951, pars 171 c, 175b, 189, 198b; CM 320029, Porter, 69 BR 257 and other authorities), the specification failed to allege an assault. Although part of the specification alleged an attempt or offer with unlawful force or violence to do bodily harm to another, the portion particularizing the attempt or offer to an act of simple negligence, contradicted the offense sought to be charged. CM 370655, Smith (1954) 15 CMR 510.

§ 65.

Assault on Superior, or Noncommissioned Officer

§ 65.1. Generally.

The accused was found guilty of striking his superior officer who was then in the execution of his office. The specification alleged that the accused did, on board a named ship, on or about a certain time and date, strike a certain named officer, his superior officer, who was then in the execution of his office, on the head and on the arm with a counter brush, commonly referred to as a foxtail, a device used for cleaning purposes. Held: The specification is sufficient to state an offense not withstanding the failure to include words importing criminality since it apprised the accused of the offense with which he was charged and alleged with particularity the elements necessary to be proved against him for conviction and it may reasonably be implied from a striking on the head with a counter brush that the action was without lawful excuse. NCM 274, Martin (1953) 13 CMR 587.

§ 68. Instructions to Court

§ 68.5. Culpable negligence.

In instructing on a charge of assault with a means likely to produce grievous bodily harm, the law officer included, inter alia, the following dictionary definition of culpable negligence. "Culpable negligence is failure to exercise that degree of care rendered appropriate by the particular circumstances, and which a man of ordinary prudence in the same situation and with equal experience would not have omitted". Held: The court was improperly instructed since the dictionary definition of culpable negligence does not supply a proper standard. (Citing MCM, 1951, par 198b; ACM 4561, Mason, 3 CMR 718; CM 356110, Kessinger, 6 CMR 367.) ACM 8278, Boynton (1954) 15 CMR 851.

§ 68.7. Aggravated assault, generally.

At a trial for the offense of aggravated assault, the evidence established that, at a drinking establishment, the victim offered to buy a drink for a young woman seated next to him. The accused, her companion of the evening, protested and thereafter engaged in a fight with the victim until a noncommissioned officer separated them. Shortly thereafter the victim and a member of the accused's party became involved in another fight which was similarly stopped. After peace had been restored, the victim advanced to the accused's table and without provocation struck a member of the accused's party and fled from the building, the accused and another in pursuit. Overtaking the victim in the street, his pursuers punched him about the face and body until he fell to the sidewalk. While in this position he covered his head with his hands and pleaded with the attackers to stop, but both continued the assault, kicking him until he lost consciousness. As a result of these blows the victim suffered a fractured jaw, numerous cuts and bruises, lost two teeth, and the sight of one eye was impaired. The injuries necessitated his hospitalization for twenty-three days. The victim's testimony concerning his fractured jaw was unrebutted, although the defense did offer evidence that three days after the incident the victim was able to converse, and that no bandages or braces were observed about his face. At the conclusion of the trial the law officer outlined the essential elements of assault in which grievous bodily harm is intentionally inflicted (MCM, 1951, par 207b). There was no request from the defense for further instructions on "grievous bodily harm." Held: Since the term "grievous" as used in the pertinent article (UCMJ, Art 128) is used in its conventional sense and therefore requires no definition as an essential part of the instructions (U. S. v. Williams (No. 251), 1 USCMA 231, 2 CMR 137; U. S. v. Jones (No. 426), 1 USCMA 276, 3 CMR 10), the failure of the law officer, in giving his instructions, to define "grievous bodily harm" was not error, especially in the absence of a request for such definition (U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Long (No. 464), 2 USCMA 60, 6 CMR 60; State v. Ockij, 165 Iowa 237, 145 NW 486, 487-488; see also State v. Graves, 35 Mo 1102, 182 SW2d 46, 56). While words of art require additional explanatory instructions (U. S.