GRAVES AND CEMETERIES § 9. National Cemeteries § 9.7. Who may be interred. Section III of AR 290-5, National Cemetery Regulations, 2 October 1951, relating to interments and disinterments, based upon the Act of 14 May 1948, PL 526, 80 Cong, ML 1949, Sec 974, restricts the burial of unmarried adult children of military personnel whose parent or parents survive to those children who were in fact at the time of death dependent for support upon the service connected parent, or spouse, because of physical or mental condition. Accordingly, a service member's daughter who died from an attack of encephalomylitis following her 22nd birthday, but was not in fact dependent upon the service member for support at the time of her death because of physical or mental condition, cannot be interred in Arlington National Cemetery in view of such regulation. JAGA 1953/1342. 2 February 1953. I. IN GENERAL. HOMICIDE § 5. Cause of Death. § 11. Included Offenses. II. NATURE AND ELEMENTS OF OFFENSES. A. IN GENERAL. § 24. Intent, Generally. C. MANSLAUGHTER AND NEGLIGENT HOMICIDE. III. EXCUSE OR JUSTIFICATION; DEFENSES. § 51. In General. § 53. Performance of Duty. § 55. Intoxication. § 57. Misconduct of Victim; Provocation. § 59. Self-Defense. IV. PROSECUTION. A. IN GENERAL. § 73. Charges and Specifications. § 82. Instructions to Court. B. EVIDENCE. 2. Weight and Sufficiency; Presumptions and Inferences. § 107. Murder. § 108. Killing in Commission of Other Offenses. § 111. Assault with Intent to Kill. § 113. Intent; Malice; Motive; Premeditation. § 5.5. Intervening or contributing causes. Accused and four companions, after consuming intoxicants, met a fifteen-year-old boy who was riding a bicycle. The accused struck the boy with a piece of timber, knocking him from the bicycle. One of accused's companions is alleged to have struck the victim after the boy fell from the bicycle. The victim died within a few hours. It was contended, upon petition for new trial, that the blow struck by petitioner's companion contributed to or caused the death. Held: One may be guilty of murder even though injuries to the victim later are inflicted by another, if the injuries inflicted by the accused contribute to the death. (Citing Hicks v. State, 213 Ind 277, 11 NE2d 171, 179.) Action of TJAG, Army, Petition of Biller for New Trial, JAGY CM 337029, 31 July 1953. [See 26 Am Jur, Homicide §§ 45 et seq.] Intoxication or contributory negligence of victim, see United States v. Russell, infra § 115.7. § 11.1. Generally. § 11. Included Offenses The accused was charged with assault with intent to commit murder and was found guilty, by exceptions and substitutions of assault with intent to commit voluntary manslaughter. The specification, as amended by the findings, alleged that the accused did commit an "assault, with intent to commit voluntary manslaughter, upon .., by shooting him in the hand with a pistol." Held: Although a specification of assault with intent to commit either murder or involuntary manslaughter does not necessarily include a consummated assault whereby grievous bodily harm is intentionally inflicted, a specification alleging the former offenses may in fact allege the consummated aggravated assault (as in the instant case) and in such instances, the lesser offense of assault whereby grievous bodily harm is intentionally inflicted is fairly included therein. Accordingly, in view of the fact that the law officer's instructions were insufficient as to assault with intent to commit voluntary manslaughter, but sufficiently covered an intent to inflict and the actual infliction of grievous bodily harm, the board of review may approve the lesser offense of aggravated assault whereby grievous bodily harm is intentionally inflicted. (Citing CM 361122, Dowdy, 9 CMR 481; and distinguishing CM 360482, Watson, 9 CMR 310.) CM 363319, Boykins (1953) 11 CMR 296. The accused was charged with assault with intent to commit murder under a specification alleging that he "did, near Marietta, Georgia, on or about 16 January 1953, with intent to commit murder, commit an assault upon [a certain named sergeant] by striking him across the head with a pistol." The court returned a finding of guilty of assault whereby grievous bodily harm was intentionally inflicted. The law officer instructed the court that this offense was a lesser included offense of that charged and he outlined to the court its essential elements. Held: The offense found was included within the specification of the offense charged. The allegations of the specification sufficiently set out the crime of assault with intent to commit murder described in par 213d(1)(a), MCM, 1951. The essential elements of that offense are that the accused, intending to kill, committed an assault upon a certain person (U. S. v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59). The actual infliction of injuries is not a necessary element of this crime and there is no requirement that it be either alleged or proved. From this circumstance the accused argued that the offense found was not included in the offense charged under the test found in par 158, MCM, 1951. However, each essential element of the offense of assault whereby grievous bodily harm is intentionally inflicted is included in the specification of assault with intent to commit murder as alleged in the instant case and accordingly the accused was properly found guilty of the lesser included offense. The means by which the assault was committed are set out by the words "by striking him across the head with a pistol". Attaching to each word and phrase of the specification its full force and effect, it is clear that more than an assault coupled with a specific intent is alleged. The language quoted above indicates an unlawful application of force to the person of the victim. The extent of the injuries actually inflicted is not specified but such an allegation is not necessary under the charge. However, the possibility that the injuries were grievous within the meaning of UCMJ, Art 128, is strongly suggested by the allegation that they were inflicted "with intent to commit murder." Under such an allegation all of the circumstances including the nature and extent of the injuries inflicted are the proper subject of inquiry, for it is from the surrounding circumstances that inferences of intent are drawn. Applying the final approach to the problem required by the manual's test, there is no possibility that the accused was unaware that the seriousness of the injuries suffered by the victim was the crucial issue before the court-martial. Finally, when the law officer described the intentional infliction of grievous bodily harm as a lesser included offense and explained the meaning of the term "grievous bodily harm" in instructing the court, no objection was offered by either the accused or his counsel. Had the defense been misled in any way counsel would have made some objection at this point. (Citing MCM, 1951, par 207b; U. S. v. Steele (No. 943), 2 USCMA 379, 9 CMR 9; U. S. v. Vigil (No. 2722), 3 USCMA 474, 13 CMR 30; MCM, 1951, par 158.) [Brosman, J., concurring, citing U. S. v. Davis (No. 646), 2 USCMA 505, 10 CMR 3.] United States v. Shelton (No. 3356), 4 USCMA 116, 15 CMR 116, affirming CM 363889, Shelton, 11 CMR 330. II. NATURE AND ELEMENTS OF OFFENSES § 24. Intent, Generally § 24.5. Intent to kill person other than the deceased. The accused was found guilty of premeditated murder. The evidence showed that the accused, armed with a carbine, entered a restaurant where L. was seated with three other men. The accused argued with L. concerning L.'s association with the accused's girl, who was also present. After L. denied being too friendly with the accused's girl, the accused left the restaurant, but returned about fifteen minutes later while L. and the other men were still in the restaurant. The accused again approached L. and reasserted his charge that he had been going about with the accused's girl friend. L. protested and the accused knocked him to the floor. The accused then loaded his carbine, and after saying "I will kill you," pointed it at L. who had risen and was standing five or six feet away. At that moment, one of the other men, C., reached out to extinguish his cigarette. The accused turned toward him and fired a burst of rounds from his carbine. S., who was closer to the accused than C., fell to the floor wounded. When S. failed to rise, the accused examined him, placed his hand over the wound, and announced there was nothing wrong. L. twice suggested that the victim be taken to a hospital, but the accused showed no interest in assisting the wounded man. Shortly after the shooting the accused left and S. was taken to a hospital where he subsequently died. Held that: — the rule of transferred premeditation and intent is inapplicable under the above circumstances. If the accused, in furtherance of his declared purpose to kill L. had shot at him and for some reason missed him, instead killing the deceased, the courtmartial could have rightly found him guilty of premeditated murder under the rule of transfer of intent and premeditation. However, here the homicide did not occur through the accused's efforts to kill the person against whom he had expressed hostility. (Citing State v. Batson, 339 Mo 298, 96 SW2d 384 and State v. Cole, 44 SE 391.) - the above evidence is sufficient to permit a finding of premeditation. When the accused returned to the restaurant the second time, he stood on the door sill, looking into the room and again made his accusations against L. After castigating L., he knocked him down and loaded his carbine with the announced intent of shooting him. These activities must have consumed sufficient time for the accused to plan a course of conduct and this may have been to kill L. or anyone in the room if they interfered with his plan. The only movement reflected by the record was a change of position that a man would make to put out a cigarette. Such a limited movement would hardly create a sudden emergency which would cause an assailant to become frantic and shoot impulsively. When the accused turned to shoot he knew he was firing at another person and indicated his quarrelsome attitude was not limited to L. When the accused noted that the victim did not get up he went over, placed his hand on the wound, announced the man was all right, refused to assist in rendering any aid, and casually departed. These facts hardly paint a picture of malice toward one, or mental confusion and emotional excitability. Neither do they suggest a spontaneous or involuntary act induced by surprise or a sudden and unlooked for emergency. (Citing U. S. v. Goodman (No. 16), 1 USCMA 170, 2 CMR 76; U. S. v. Aikins and Seevers, 5 BR-JC 375, 390; distinguishing Bullock v. U. S., 122 F2d 213.) [Brosman, J., dissented.] United States v. Sechler (No. 1025), 3 USCMA 363, 12 CMR 119, affirming CM 351485, 3 CMR 216. C. MANSLAUGHTER AND NEGLIGENT HOMICIDE § 41. In General Provocation sufficient to reduce crime to manslaughter, see § 57. III. EXCUSE OR JUSTIFICATION; DEFENSES § 51. In General § 51.11. Insanity or mental impairment of accused. See 26 Am Jur, Homicide § 105. The accused was convicted of premeditated murder. In pretrial statements, the accused stated that after having intercourse with |