5.370, pp 549–550; CM 328930, Williams, 77 BR 323; CM 329585, Rogers, 78 BR 107; CM ETO 6235, Leonard, 16 BR ETO 279.)

- furthermore, such instruction constituted prejudicial error since it invited the court to substitute drunkenness for culpable negligence (see CM 350665, Derrick, 3 CMR 267 and ACM S-2214, Skaggs, 3 CMR 553) and to make its determination independently of all the other evidence and circumstances in the case which might have a bearing on the existence or nonexistence of the vital element of culpable negligence. Also the importance of the mentioned instructions was greatly magnified by counsel for both sides throughout the trial and the erroneous instruction was couched in language almost identical to that frequently utilized by the trial counsel. In this setting it is hard to conceive of a case where the probability of an incorrect instruction influencing a court exceeds that of the instant case and where, therefore, the error affords a fairer risk of substantial prejudice (see United States v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; CM 350665, Derrick, supra; ACM S-2214, Skaggs, supra). It is not incumbent upon the board to determine what the court would have found if it had been correctly instructed (United States v. Yerger (No. 122), 1 USCMA 288, 3 CMR 22; United States v. Gilbertson (No. 318), 1 USCMA 465, 4 CMR 57; United States v. Soukup, supra; United States v. Drew (No. 422), 1 USCMA 471, 4 CMR 63; United States v. Strong (No. 244), 1 USCMA 627, 5 CMR 55). Nor can it be contended that the erroneous instruction was cured by the law officer's otherwise correct instructions on culpable negligence and the meaning thereof since at least these contradictory instructions could have resulted in confusion in the minds of the court (see United States v. Fields (No. 1424), 2 USCMA 278, 8 CMR 78).

however, the error may be cured by affirming findings of guilty of the lesser included offense of negligent homicide since the court was fully and correctly instructed as to this offense and there is ample evidence in the record showing that the accused was driving while appreciably drunk and negligently caused the death of the victim. (Citing United States v. Bigger (No. 456), 8 CMR 97, 9 Mar. 1953). The instructions on negligent homicide would not appear to have been tainted by the erroneous instruction expressly limited as it was to the principal offense of involuntary manslaughter-especially so since it appears to be per se or presumptive negligence for a person to proximately cause the death of another by driving a motor vehicle while drunk in violation of statute. (authorities cited supra). CM 360337, Beardsley (1953) 9 CMR

458.

The accused was charged with the premeditated murder of a Korean soldier. There was evidence that the accused, upon meeting the alleged victim, demanded that the soldier produce his pass and that he failed to comply. Two Korean witnesses testified that upon such failure, the accused seized the soldier by the arm, and after a brief struggle, the accused fired two shots at the soldier who fell slowly to the ground. They stated that when the soldier tried to regain

his feet, the accused, taking careful aim, fired another round into the soldier's head. However, the accused claimed that the deceased had seized his arm, and after he (the accused) shook him off and stepped back, the deceased took his carbine from his shoulder, and, as he worked the bolt, the accused fired his carbine twice. He then wrenched the deceased's carbine from the latter's grasp and, thereafter, fired a final shot at the deceased. The law officer instructed the court that the elements of the offense charged were "that the victim named or described was dead," that "his death resulted from the act or omission of the accused, as alleged," and that "the facts and circumstances showing that the accused had a premeditated design to kill." The law officer added: "As to the correct meaning of premeditation, I direct the court's attention to paragraph 197(d) on page 352, Manual for Courts-Martial, 1951.”

Held that:

-the law officer's instructions on the elements of the offense were sufficient, notwithstanding his failure to define premeditation. While law officers should, as a matter of policy, define such technical terms, the Court will not reverse for failure to do so, in the absence of a specific request by the defense counsel based upon the presence of special circumstances arising from a peculiar factual situation (U. S. v. Day (No. 703), 2 USCMA 416, 9 CMR 46).

-a law officer inadequately discharges his duty to instruct the court on necessary matters by a mere reference to an applicable paragraph of the Manual for Courts-Martial (U. S. v. Strong (No. 244), 1 USCMA 627, 5 CMR 55). However, in the absence of a positive duty to instruct, such a reference may not be considered

erroneous.

-the evidence presented to the court did not reasonably raise the issue of self-defense so as to require an instruction on such issue. Under the circumstances, it appears that the possibility of harm resulting to the accused at the hands of the deceased was remote, if not impossible, and furthermore, the deliberate careful. firing of a final bullet into the head of the deceased under the circumstances entirely destroys his claim of justiñable homicide. (Citing U. S. v. Charles F. Simmons (No. 505), 1 USCMA 691, 5 CMR 119, and other cases). United States v. Amdahl (No. 850), 3 USCMA 199, 11 CMR 199, affirming CM 348935, Amdahl, 2 CMR 406.

The accused was charged with the unpremeditated murder of his daughter and was found guilty of the lesser offense of voluntary manslaughter. However, the law officer did not instruct on the lesser offenses of involuntary manslaughter and negligent homicide although the evidence raised these offenses. The following instruction was given: "You are also instructed that if you find that the accused, as the parent of [name of victim], committed an act of violence upon her resulting in death, such act may be treated as proof sufficient to supply malice on the part of the parent as well as a guilty intent." Held: Under the facts of this case the instruction

Considering

defining malice and intent as worded was erroneous. the instruction given together with the fact that the lesser offenses of involuntary manslaughter and negligent homicide were not instructed upon, it is apparent that because of the lack of instructions on the lesser included offenses the court had little choice if it found that an act of violence by the accused resulted in the death of his daughter but to pass to the next premise, that is, such finding could be treated as proof sufficient to supply malice as well as guilty intent. The malice or guilty intent in turn could refer only to unpremeditated murder or voluntary manslaughter.

Held also: The instruction is erroneous notwithstanding the fact that the defense counsel failed to object. This failure to object under other circumstances might be considered as a waiver (U. S. v. Masusock (No. 15), 1 USCMA 32, 1 CMR 32; U. S. v. Smith (No. 486), 2 USCMA 440, 9 CMR 70). However, under the facts of this case, with several instances of cumulative error resulting in material prejudice to the rights of the accused, the board is not precluded from considering the possible effect of this particular error. (Citing U. S. v. Williams (No. 133), 1 USCMA 186, 2 CMR 92; U. S. v. Rhoden (No. 153), 1 USCMA 193, 2 CMR 99.) ACM 7732, Hawley (1954) 14 CMR 927.

[Generally as to instructions on malice and intent, see 26 Am Jur, Homicide $ 536.]

Sufficiency of instructions on premeditation, see United States v. Edwards, supra § 51.11.

§ 82.7. Assault with intent to commit homicide.

The accused was convicted of assault with intent to murder. The evidence showed that he had been drinking and that he had threatened a sergeant with a loaded weapon but had remarked at the time that he really didn't want to harm the sergeant and that a certain lieutenant was the one he really wanted. Following the incident with the sergeant, the lieutenant appeared and the accused threatened him saying "Come any closer and I'll shoot you". The officer continued his advance and the accused fired. One round struck the officer. The accused testified that the only reason he could give for his actions was that he was drunk and he denied any sort of animosity toward his victim. In the course of his instructions upon the offense of assault with intent to murder, the law officer defined the elements of murder, and included therein the following: "That, at the time of the killing, the accused intended to kill or inflict great bodily harm." Held: As to the offense of assault with intent to murder, the term "murder" must be limited to that variety of the crime characterized by an intent to kill. Since no such limitation was placed on the term in these instructions, error resulted. Although the evidence of record is sufficient to support a finding of intent to kill the court could also have reasonably concluded that the accused merely intended to inflict great bodily harm. The law officer's instructions misinformed the court-martial to the effect that its members might convict of assault with intent to murder,

although they found only an intent to inflict grievous bodily harm. Therefore, the accused was prejudiced. (Citing U. S. v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59; U. S. v. Woodson (No. 1740), 3 USCMA 372, 12 CMR 128.) [Quinn, C. J., concurring in part and dissenting in part, stated that the instructions were erroneous but that on the evidence in this case the error was not prejudicial because there was no reasonable possibility that the court could find merely an intent to inflict great bodily harm. (Citing U. S. v. Jenkins (No. 238), 1 USCMA 329, 3 CMR 63; U. S. v. Moynihan (No. 278), 1 USCMA 333, 3 CMR 67.)]

Held also: The fact that the law officer charged the court members that intoxication must be considered on the question of intent but omitted instructions on assault with a dangerous weapon as a lesser included offense not demanding the establishment of specific intent was not error since the degree of intoxication presented by the evidence does not create the possibility that the accused might have lacked sufficient mental capacity to entertain a specific intent. The accused's actions in expressing repeated threats, in twice obtaining a weapon, destroy any possibility of doubt that he was sober enough to know what he was doing and to intend the foreseeable result. (Citing U. S. v. Benavides (No. 876), 2 USCMA 226, 8 CMR 26.) United States v. Christensen (No. 2394), ↳ USCMA 22, 15 CMR 22.

Instructing on intent to inflict grievous bodily harm where charge is assault with intent to commit murder, see United States v. Bentley, CONDUCT, ETC. § 51.

§ 82.9. Offenses other than that charged; alternative intents.

The accused was found guilty of assault with intent to commit murder. The law officer gave the following definition of murder while instructing on the elements of assault with intent to commit murder: "Unpremeditated murder is committed when a person who without justification or excuse unlawfully kills a human being when he intends to kill or inflict great bodily harm." . . "the elements of unpremeditated murder are: That the person named in the specification as the victim is dead. That his death resulted from the acts or omission of the accused as alleged in the specification. The facts and circumstances showing that the accused intended to kill or inflict great bodily harm." The evidence showed that the accused assaulted the victim by shooting him in the head with a pistol and the record disclosed that the victim received a double entry scalp wound approximately two by three inches in length. The testimony did not disclose what, if any, hospitalization or medical treatment was given. Held: The instruction was erroneous since the effect of the instruction that if the accused intended to kill or inflict great bodily harm at the time of the assault was to permit the court to find the accused guilty of assault with intent to commit murder even though he had only the intent to inflict great bodily harm and such instruction was sufficient only as to the lesser included offense of assault with a dangerous weapon, in violation of UCMJ, Art 128. (Citing CM 361122, Dowdy, 9 CMR 481; CM 360482, Watson, 9 CMR 310; CM

352301, Lookinghorse, 8 CMR 189; CM 359627, Lomax, 8 CMR 409; cf. CM 357178, Moore, 9 CMR 363. See also United States v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59.) The board considered the fact that the accused assaulted the victim by shooting him in the head and that such facts might seem to indicate a greater offense than assault with a dangerous weapon. However, the board determined that, while, under most circumstances, a head injury would be considered grievous, such is not necessarily true of every scalp wound and here the wound suffered by the victim was apparently only a slight flesh wound requiring very little medical treatment and is no more grave or severe in character than would have ordinarily resulted from a simple assault and battery. Accordingly the proof is insufficient to show that grievious bodily harm was inflicted by the accused. (Citing MCM, 1951, subpar 207b (2); State v. Gaularpp, 174 NW 445; State v. Bowers, 228 NW 164; distinguishing CM 361122, Dowdy, 9 CMR 481.) CM 362328, Floyd (1953) 10 CMR 371.

The law officer in his instructions concerning the charge of assault with intent to commit murder defined assault. Then, in stating the elements of murder, he stated, inter alia, "that the accused had a premeditated design to kill or intended to kill or inflict great bodily harm." During subsequent instructions, the law officer again referred to the alternative of "either an intent to kill or an intent to inflict great bodily harm." He then correctly defined the term "great bodily harm." The specification containing the charge stated, and the evidence established, that the accused cut the victim on the head, body, and arm with a razor; but the pleadings did not indicate that such cutting was deep or otherwise indicate that grievous bodily harm resulted. Held: Since the instructions presented alternative intents, permitting the court to find the accused guilty as charged even if the accused only had an intent to inflict grievous bodily harm, the substantial rights of the accused were prejudiced (United States v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59; ACM 4382, Drew (Reh), 8 CMR 774; ACM 5971, Escobeda, 9 CMR 627; ACM 6582, Ragan, 10 CMR 725). Ordinarily, the prejudicial effect of such error could be removed by affirming a finding as to the lesser offense of assault with intent to inflict grievous bodily harm. However, since it was not indicated in the pleadings that grievous bodily harm was inflicted, such a finding is not permissible even though established by the evidence (CM 357117, Baker, 7 CMR 142; ACM 5753, McElroy, 8 CMR 615). Under the circumstances, a finding may be approved only as to an assault with a dangerous weapon, a lesser included offense not involving specific intent to inflict grievous bodily harm or any bodily harm (UCMJ, Art 128 (b) (1); MCM, 1951, par 207b (1); United States v. Cromartie (No. 374), 1 USCMA 551, 4 CMR 143, 146; ACM S-95, Webb (BR), 2 CMR(AF) 243, 245), which offense was covered by the instructions and established by the evidence. ACM 6635, Lovelady (1953) 11 CMR 735.

In instructing on the elements of unpremeditated murder, the law officer stated that one of the elements was that at the time of the shooting the accused intended to kill or inflict great bodily harm