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
- The design to kill was pre-mediated.
- He intended to kill the person or to inflict great bodily harm upon him.
- He was involved in an dangerous act, envisioning a wanton disregard for life.
- 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
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.
- 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.