United States v. Wilkerson

16 C.M.A. 525, 16 USCMA 525, 37 C.M.R. 145, 1967 CMA LEXIS 352, 1967 WL 4208

• Court: United States Court of Military Appeals
• Decided: February 17, 1967
• Docket: No. 19,882
• Status: Published

Opinion

Opinion of the Court

Per Curiam:

The accused .was found guilty, of aggravated assault, in violation of Uniform Code of Military Justice, Article 128, 10 USC § 928, and communication of a threat in violation of Code, supra, Article 134, 10 USC § 934. He was sentenced to dishonorable discharge, forfeiture of all pay and. allowances, and confinement at hard labor for five years. Intermediate appellate authorities have affirmed, with a reduction in the period of adjudged confinement. Accused’s petition for review, among, other assignments, contends the law officer erred prejudicially in instructing the court on the issue of self-defense. The Government concedes such to be the case and prays for remand of the record, to the board of review.

The law officer, ■ in advising the court regarding self-defense, declared not only that the accused must have honestly believed himself to be in danger of death or grievous bodily harm from his victim, but also required it to find “the evidence tended to show” such to be the case. This was patently erroneous, for an accused need only be in apparent, not actual, danger in order to resort to his right of self-defense. United States v Burse, 16 USCMA 62, 36 CMR 218, and cases cited therein. The Government’s concession is, accordingly, correct.

The petition for review is granted, and the findings of guilty of Charge I and its specification are set aside. The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. The board may reassess the sentence on the basis of the threat charge or order a rehearing on the assault count and the penalty.