United States v. Stokes

6 C.M.A. 65, 6 USCMA 65, 19 C.M.R. 191, 1955 CMA LEXIS 342, 1955 WL 3419

• Court: United States Court of Military Appeals
• Decided: June 24, 1955
• Docket: No. 5747
• Status: Published

Opinions

Opinion of the Court

Paul W. Brosman, Judge:

The accused — a Marine sergeant assigned to military duty in Korea at the time of the commission of the offenses alleged — was tried by general court-martial and convicted of absence without leave, in violation of Article 86, Uniform Code of Military Justice, 50 USC § 680; assault with a dangerous weapon, in violation of Article 128, Uniform Code, 50 USC § 722; and unpremeditated murder, in violation of Article 118, Uniform Code, 50 USC § 712. All findings, together with the sentence to dishonorable discharge, total forfeitures, and confinement at hard labor for twenty-five years, were approved subsequently by the convening authority. After affirming the findings, a Navy board of review halved the period of confinement approved below, but otherwise affirmed the sentence. We granted review to test the. sufficiency of the law officer’s instructions.

II

On the afternoon of November 22, 1953, Stokes and a friend were drinking native wine in a Marine squadbay at Ascom City, Korea. After more than a dozen bottles had been consumed by the pair, they were joined by two soldiers — an acquaintance of the accused named Johner, and a Corporal Self, whom Stokes had not met before. At approximately nine o’clock that evening, Self, Johner and the accused entered the front seat of a “jeep,” and proceeded to an Army compound some two miles distant. During the drive, the accused drew and flourished a .45 caliber pistol, but at Johner’s insistence returned it to his belt. When the vehicle arrived at the compound, Self, who was on duty as Corporal of the Guard, was joined by his relief — a Corporal Shrum — and an unidentified Korean sentry. In order to seat the two additional riders, the accused and-John-er placed themselves in the rear of the “jeep” with the former located on the left side. Shrum, Self and the Korean were seated in front, Self between the other two. Johner then requested Corporal Self to join himself and the accused in the back seat. Although John-er had been unaware that the accused had once more removed the pistol from the top of his trousers, as the former observed Self to place his hands on the rear of the front seat and turn in a leftward direction, the accused squeezed its trigger and the weapon flashed. Acting instantly, Johner thrust the accused’s arm downward as the latter fired a second round, removed the .45 from his grasp, and struck him on the head with its butt. An examination of Self disclosed a bullet wound near his right shoulder. He died later as a result of gunshot injuries. Approximately two minutes after the incident, the accused left the jeep, inquiring “Who shot who?” — and almost immediately lapsed into sleep or unconsciousness on a stretcher brought to the scene by medical corpsmen.

At midnight the accused, unsteady physically and without capacity to speak clearly, was transported by ambulance from a medical station in Ascom City to a Marine hospital ship at Inchon. En route, he was informed by a member of the Criminal Investigation Detachment that he would no longer have need for his identification card “because you killed a man.” Following this remark the accused asked repeatedly, “Is this true,” and exclaimed, “I can’t believe it.” On the basis of a laboratory examination accomplished some four hours after the shooting— and showing the presence of substantial quantities of alcohol in the accused’s blood — a medical officer concluded that the latter had not been in full possession of his faculties at the time of the wrongful act.

At the trial, the law officer instructed appropriately on the elements of both premeditated and unpremeditated murder, but did not charge with respect to lesser degrees of homicide. The instructions included a reference to the theory that the performance of an act inherently dangerous to others may support a finding of unpremeditated murder — provided the conduct reflects a wanton disregard of human life, characterized by heedlessness of probable consequences or indifference that death or great bodily harm may ensue. We granted the accused’s timely petition to determine whether the law officer should have charged on additional lesser offenses, and whether the instruction, seeking to define an inherently dangerous act in terms of “heedlessness” and “indifference,” was correctly put.

Ill

Appellate defense counsel have urged with vigor that both involuntary manslaughter and negligent homicide were raised by the evidence offered at the trial. We are convinced that the conduct of the accused clearly involved more than the simple negligence which constitutes the basis for the latter offense. Therefore, we shall limit our inquiry to the possibility that involuntary manslaughter was reasonably raised, and thus should have been the subject of an instruction. As the first step in this inquiry, we must determine the import of Article 118(3) of the Code.

This provision is, in one sense at least, an innovation — for in Article of War 92, 10 USC § 1564, no more than a bald reference to murder is to be found, and no effort to define the elements of that offense was made. However, pre-Code Manuals had sought to implement this legislation and, inter alia, had included discussions of the term, “malice aforethought.” In one of them it was explained that this term

“. . . may mean any one or more of the following states of mind preceding or coexisting with the act or omission by which death is caused: An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not (except if death be inflicted in the heat of a sudden passion, caused by adequate provocation — see 180a) ; knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not, even though such knowledge be accompanied by indifference whether death or great bodily harm is caused, or by a wish that it may not be caused.” [Emphasis supplied. Manual for Courts-Martial, U. S. Army, 1949, paragraph 179a, page 231. Accord: Manual for Courts-Martial, U. S. Army, 1928, paragraph 148a, pages 163-4; Manual for Courts-Martial, U. S. Army, 1921, paragraph 442, pages 410-1. Cf. Naval Courts and Boards, 1937, sec. 63, page 23.]

A careful study of the legislative hearings with respect to the Uniform Code makes clear that, in enacting Article 118, Congress intended no fundamental change in the previous definition of malice aforethought. As we commented in United States v. Craig, 2 USCMA 650, 10 CMR 148, “All we believe that was intended was to separate the different states of mind so as to be more easily dealt with in the trial of cases.” Accordingly, we expressed in that case our conclusion that Article 118(3) was intended to correspond to the portion italicized in the above quotation from paragraph 179a of the 1949 Manual — in which it is stated that knowledge that the act, which in fact produced death, would probably serve to cause death or grevious bodily harm to any person, is sufficient to constitute malice aforethought.

What does the 1951 Manual for Courts-Martial have to say on the subject? Its wording — used by the law officer as a basis for his instruction in the instant case — is as follows:

“Act inherently dangerous with xvanton disregard of human life.— Engaging in an act inherently dangerous to others, without any intent to cause the death of, or great bodily harm to, any particular person, or even with a wish that death may not be caused, may also constitute murder if the performance of the act shows a wanton disregard of human life. Such disregard is characterized by a heedlessness of the probable consequences of the act or omission, an indifference that death or great bodily harm may ensue. Examples might be throwing a live grenade toward another in jest, or flying an aircraft very low over a crowd to make it scatter.” [Manual, supra, paragraph 197/.]

It has been suggested that the discussions of substantive offenses found in the Manual for Courts-Martial should be ignored by us in arriving at the meaning of a punitive article of the Code. However, on frequent occasions we have given substantial weight to the interpretations accorded Code provisions by the draftsmen of the Manual. See, e. g., United States v. Johnson, 3 USCMA 709, 14 CMR 127; United States v. Hemp, 1 USCMA 280, 3 CMR 14. Cf. United States v. Biesak, 3 USCMA 714, 14 CMR 132; United States v. Littrice, 3 USCMA 487, 13 CMR 43 (concurring opinion).

Moreover, we believe that it was the intendment of Congress that such Manual interpretations be given weight. Article 36, 50 USC § 611, provides that the President may prescribe “procedure, including modes of proof” for trials by court-martial. It is — it strikes us — distinctly arguable that the phrase “modes of proof” was designed to include discussions of the punitive articles of the Code — such as those found in the 1949 Manual, and previous editions, having to do with similar sections of the Articles of War. It is notable, too, that the phrasing of Article 36 of the Code is almost identical with that of Article of War 38, 10 USC § 1509— under the authority of which the 1949 Manual was promulgated. It is unlikely, indeed, that, if Congress had desired to limit the President’s rule-making power, it would have employed the language now found in Article 36.

During Senate hearings on the Uniform Code a question arose concerning the meaning of Article 88, 50 USC § 682, having to do with contempts directed against certain officials. At that time Felix Larkin, Esquire — one of the Code’s principal draftsmen — read verbatim the entire discussion of Article of War 62, 10 USC § 1534, contained in the 1949 Manual for Courts-Martial, which legislation proscribed similar behavior. After quoting this military interpretation, Mr. Larkin noted: “I assume that kind of a construction would appear again in the manual which must be written to implement this whole thing, you see.” Hearings before the Senate Committee on Armed Services, 81st Congress, 1st Session, on S. 857 and H.R. 4080, page 333. Certainly this remark anticipated the promulgation of a new Manual which would include discussions of punitive articles —and which presumably were not to be treated as nullities by military tribunals or by this Court.

It was with an eye to the importance of the forthcoming Manual that Congress required that all rules and regulations made in pursuance of Article 36 “be reported to the Congress.” And a similar provision had appeared in Article of War 38. During House hearings it was emphasized that the new Manual “will come to Congress,” and that “the Congress will have an opportunity to scan” the rules and regulations provided by the President. Hearings before the House Committee on Armed Services, 81st Congress, 1st Session, on H.R. 2498, pages 1015, 1063. This constitutes an additional circumstance which renders it appropriate that we do not deny an ear to the language of the Manual.

Nevertheless, in instances of conflict, it is manifest that a Manual passage must give way to the Code. See, e. g., United States v. Rosato, 3 USCMA 143, 11 CMR 143; United States v. Greer, 3 USCMA 576, 13 CMR 132. Here, as we have seen, it seems clear that Article 118(3) must be construed to adopt for the most part the discussions of malice aforethought found in the 1949 Manual for Courts-Martial and in its predecessors. To the extent, therefore, that the treatment found in paragraph 197/ of the 1951 Manual is inconsistent with the provisions of earlier Manuals— ones requiring knowledge that death or grievous bodily harm is a probable consequence of the act — the current exposition of Article 118 (3) must be considered invalid.

Examining paragraph 197/, we discover a reference to “probable consequences” of an act. We believe that this accords with the statement of earlier Manuals to the effect that the act in question must be one which would probably result in death or grievous bodily harm. However, is the requirement that the accused have knowledge of those probable consequences spelled out in the present Manual? The crucial words are “disregard,” “heedlessness,” and “indifference.” “Disregard” — a term also used in the Code itself — does, we are sure, import knowledge of probable consequences accompanied by a lack of concern therefor. The remaining words are consistent with, on the one hand, a lack of knowledge of probable consequences and, on the other, a knowledge of those consequences but an absence of worry or concern about them —that which, in the vernacular, might be termed a “so-what” attitude toward probable results.

In short, the situation here resembles that found in United States v. Biesak, supra. There we were required to deal with an instruction which was predicated on certain language of the current Manual for Courts-Martial. Our conclusion was that the wording involved was ambiguous, but not manifestly erroneous. This same conclusion we reach with respect to the phrasing of paragraph 197/ before us here.

IV

One other difficult facet of the problem of definition is before us — that concerned with drunkenness. It will be observed that we have construed Article 118(3) to require a knowledge of probable consequences. In dealing with other offenses which require certain types of knowledge, we have concluded that such knowledge might well be precluded by drunkenness. See, e. g., United States v. Miller, 2 USCMA 194, 7 CMR 70; United States v. Higgins, 4 USCMA 143, 15 CMR 143.

However, we are barred from taking a similar position here by the reasoning of United States v. Craig, supra. There Judge Latimer spoke for a unanimous Court as follows:

. . If, for illustrative purposes, we assume that an accused is charged under a specification alleging premeditated murder and the facts permit a finding of a premeditated design to kill, and also permit a finding that the killing occurred as a result of an act which was inherently dangerous to others, the law officer might be faced with this unusual situation if intoxication was in issue. He would be required to instruct the court that it could be considered in determining whether the accused could form a specific intent; and if he could not, the crime could be reduced from premeditated murder to manslaughter unless there was also involved the lesser offense of unpremeditated murder arising out of doing an act inherently dangerous to others and in that event it could not be reduced below unpremeditated murder. We may not see clearly all the implications, but to have the offenses leapfrogging each other would make applying of the act and instructing the court a confusing and uncertain business. On the other hand, to permit intoxication to be considered only for the purpose of reducing premeditated murder to ordinary murder would make less complicated the difficult problems encountered.”

It will be recalled, too, that the Craig case followed the interpretation of Article of War 92 laid down in United States v. Roman, 1 USCMA 244, 2 CMR 150 — so that it must be assumed that a similar view would have been taken in interpreting the term, “malice aforethought,” under the immediate predecessor to Article 118 of the Uniform Code. In short, then, drunkenness is viewed in military law as having no sort of bearing on malice aforethought — whether under 118 (2) or 118 (3). Accordingly, it cannot operate to negate that knowledge of probable consequences which is required for conviction under Article 118.

Perhaps it will be said that “knowledge” is no more than Active, once it is conceded that an accused is thoroughly intoxicated. If so, suffice it to say that we are committed to this legal fiction by the Craig case. It may be added that intent or malice may be equally supposititious if an accused is very drunk. Yet it appears that voluntary drunkenness — not amounting to legal insanity — will not in military law negate that general criminal intent, the malice, required for a conviction of unpremeditated murder. United States v. Craig, supra. In this regard military law accords happily with the common law. See United States v. Bishop, 107 F2d 297 (CA DC Cir).

V

Applying to the record of trial before us the principles of the preceding paragraphs, we are sure the present conviction must be affirmed. While located within the confines of a small vehicle— one occupied by five persons — the accused discharged a .45 caliber pistol in the direction of the front seat, in which the victim and two acquaintances sat. True, he appeared to bear no ill will toward the deceased, nor had he a discernible reason for firing the weapon. However, to have done so in such quarters revealed indisputably a wanton disregard by the accused for the lives of those riding in the automobile. United States v. McDonald, 4 USCMA 130, 15 CMR 130.

We must emphasize the fact that, shortly before the tragic episode with which we are concerned, the accused had drawn a pistol — which, incidentally, he was carrying without authority— and had been expressly directed by Sergeant Johner to desist. Although we were to assume unrealistically that the accused — a Marine sergeant with five years’ service — was unaware of the death-dealing power of the weapon, he was certainly placed on notice of its dangerous quality by Johner’s warning. Thus, when he brandished and fired the arm a second time within a small and crowded vehicle in which four other persons were being carried, it is clear that he acted with reckless indifference toward human life.

Appellate defense counsel — relying on the testimony of certain witnesses who spoke of the accused’s want of sobriety — insist that his possible intoxication served to place involuntary manslaughter in issue. As we have previously noted, however, the Craig decision leaves us no alternative to a holding that intoxication is irrelevant now — the accused having been found free from premeditation. Thus, we need only inquire into what issues would have been raised had the accused been wholly sober at the time of the homicide. In such event — even absent the express warning of his fellow passenger, Sergeant Johner — the possibility that he lacked knowledge of the probable consequences of firing the weapon might well be deemed not to have been reasonably raised. However, in light of Johner’s undisputed testimony that he had directed the accused to lower the pistol, there can be no slightest doubt that lack of knowledge was not in issue — if, as is the case, drunkenness must be disregarded. Our inescapable conclusion is that the law officer did not err in omitting to charge on involuntary manslaughter.

VI

It is suggested that the law officer’s charge with respect to Article 118 (3) of the Code constitutes reversible error. Those instructions were put in the language of paragraph 197/ of the 1951 Manual which — as we have observed— is ambiguous. However, no complaint of ambiguity was entered by defense counsel, and no request for clarification was made. Therefore, the instruction may not properly be availed of here as a basis for reversal. United States v. Biesak, supra.

A further difficulty is posed by an example used in the law officer’s instructions in explanation of Article 118 (3). To this end he suggested that a motorist, regardless of sobriety, who drove his vehicle into a defined area — one in which numerous pedestrians were gathered together — and killed one of their number, might properly be found guilty of unpremeditated murder. In phrasing this illustration, the law officer omitted reference to the need for knowledge on the part of the perpetrator that his act would probably cause the death of, or grievous bodily harm to, a person or persons. "While it must be obvious that the illustration, only one of several, might have been phrased more carefully, we are unconvinced that the instruction of which it was an element —when read fairly as a part of the whole — reached the level of prejudicial error.

In the first place, in its language the law officer did not exclude specifically a knowledge of probable consequences— so that his instruction in that respect suffered merely from the ambiguity which characterizes paragraph 197/ of the Manual. And our previous comments on the defense’s failure to request clarification are equally apposite here. Secondly, the law officer’s failure to elaborate on knowledge is of much less significance where, as here, it unquestionably existed — unless, indeed, it be assumed that the accused was too deeply intoxicated to possess such knowledge. In the latter event, however, the evidence of drunkenness must, under the doctrine of the Craig case, be excluded from consideration. Thus, there remains no issue of intoxication. In light of the issues actually before the court-martial here, we are sure that the instructions supplied by the law officer constituted an adequate framework within which the court-martial might fairly pass on guilt. If the defense counsel at the trial thought further elucidation necessary, he should have requested it.

VII

The decision of the board of review must be and is affirmed.

Chief Judge Quinn concurs in the result.