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Article 118 - Murder

Article 118 of the UCMJ relates to murder. It says that an enlisted member kills a human being unlawfully, without excuse or justification if

  1. The design to kill was pre-mediated.
  2. He intended to kill the person or to inflict great bodily harm upon him.
  3. He was involved in an dangerous act, envisioning a wanton disregard for life.
  4. He kills a human being as he was perpetuating a burglary, sexual assault, aggravated sexual contact, rape (including rape or sexual abuse of a child), aggravated arson or robbery or if he was attempting to perpetuate these acts.

Such an enlisted member will suffer the punishments handed to him by a court martial, unless he is held guilty under clauses 1 or 4, in which case he shall be sentenced to death or life imprisonment. The maximum punishment for committing pre-mediated murder under the UCMJ is a death sentence. The minimum punishment is life imprisonment (the enlisted member is eligible for parole).

Explanation for Article 119

The circumstances of the unlawful killing determines whether it is a murder or another offense like manslaughter. The victim may die elsewhere, but the murder is deemed to have happened at the location where the act or omission was committed. Whether the individual dies when the act was committed or later, it should result from the injury the individual received.

A murder is premeditated only when an accused consciously conceives the thought that he wants to take the other person's life and so acts on it. This means that the accused had a specific intent to kill the other person.

When the accused had formed a intent to kill, it is not important to show how soon he put it into action. The circumstance of the murder can be used to infer premeditation.

Interestingly, if the accused intended to kill a certain person, but inadvertently or mistakenly kills another person, the accused will still be charged with premeditated murder, because the intent to kill transfers to the final victim.

Voluntary intoxication, when it does not amount to legal insanity may result in a reduction of the charge from pre-mediated murder to unpremeditated murder. But unpremeditated murder cannot be reduced to manslaughter.

Intent to kill

In cases of an unlawful killing, even if the accused did not premeditate the act but had an intent to kill, or inflict grievous bodily harm on the victim, such an act is also murder. The inference is that the accused knew the probable and natural consequence of the act, but still went ahead with it.

Great or grievous body harm does not include small injuries like a bloody nose or a black eye, but dislocated or fractured bones, seriously damaged internal organ and deep cuts are included.

Inherently dangerous acts

If the accused engages in a dangerous act and a person ends up dead, it can be charged as a murder even if he did not intend to kill the other person. It shows a wanton disregard for human life. For example, a soldier throws a live grenade to another person or flies a plane low over a person. The accused should be aware that the act is dangerous and death or grievous bodily injury can result.

Death as a result of certain other offenses

If an individual is unlawfully killed while the accused was perpetuating any of the offenses under clause 4 or attempting to perpetuate them, he will be charged with murder. The accused cannot defend himself by saying that the killing was accidental or unintended. The accused can also be charged separately for the offenses under clause 4.

Manslaughter, which is covered under Article 119, is a lesser included offense under Article 118. This means that even if the court find the defendant not guilty of murder, it may still hold him guilty of manslaughter and for this, the government does not have to amend the charges framed.

Maximum punishment for committing murder

1. Article 118 (1) and (4) - The maximum punishment that can be imposed on a service member who commits murder, in violation of section 1 and 4 of the Article 118 can be punished with death. The mandatory minimum sentence in this case is life imprisonment, with provision for parole.

  1. Article 118 (2) or (3) - Any punishment other than death, as directed by a court martial.

Some cases that involved murder and the defenses and arguments used therein

In US Vs Riley (CAAF 2003), the accused had refused to assist a women to deliver and care for her child. He was convicted for unpremeditated murder. The AFCCA later overturned the ruling and convicted him for involuntarily manslaughter. The CAAF remanded the case back to the AFCCA, who affirmed the conviction, but for involuntary manslaughter caused by culpable negligence. The CAAF again remanded the decision and then accused was finally found guilty of negligent homicide.

Voluntary manslaughter is one of the lesser included offenses under murder. In US Vs Wells, it was held that a military judge must inform Members of the Court of lesser included offenses, even if the defense has objections, if the judge finds that the evidence has raised the issue.

In US Vs Dobson (CAAF 2006), the court said that the charge of unpremeditated murder did not need a fixed intention to kill a person, after the accused considered a specific act. So a person can be convicted of committing unpremeditated murder, even if he had no intention of killing the victim before he carried out the specific act. It is enough if the act was intentional and could have caused death or at least great bodily harm.

In US Vs Schap (CAAF 1998), the court said that a killer cannot induce the provocation that would have aroused sufficient fear or rage, so that the charge of murder is reduced to involuntarily manslaughter. If there was a reasonable time between the provocation and the victim's death, that would have cooled down a reasonable person, then the accused has committed the offense of murder.

In US Vs Valdez (CAAF 1994), the accused and the accused's family had denied their eight year old daughter medical attention, and combined it with physical abuse, and a specific intent to cause bodily harm. The court ruled that it amounted to unpremeditated murder.

In US Varasso (CMA 1985), the accused had helped the victim commit suicide by tying the nose around victim's head and tying her hands behind her back. The victim was rendered helpless and could not save herself, when she jumped. The motive was unclear, still the court ruled that the evidence was sufficient to convict the accused for unpremeditated murder. The court said that intention to kill was inferred from the consequences of the act.

In Us Vs Thomas (NMCCA 1995), the accused's accomplice had testified that the accused had taken part in the murder. The accomplice's testimony was deemed sufficient to convicted the accused for committing premeditated murder.

In US Vs Teeter (CMA 1983), The court ruled that premeditation can be inferred from the viciousness of an attack. In that case, the accused had knocked the victim unconscious, raped her, slit her throat and then stabbed her 32 times.

In US Vs Tarver (ACMR 1989), the accused was suffering from a mental illness. It was not a complete defense, but the ACMR ruled that the military judge had done a mistake by not instructing that the presence of the disease could negate the intent element present in unpremeditated murder.

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