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Text.
“Any person
subject to this chapter who, without justification or excuse, unlawfully
kills a human being, when he—”
(1)
has a premeditated design to kill;
(2)
intends to kill or inflict great bodily harm;
(3)
is engaged in an act that is inherently dangerous to another and evinces
a wanton disregard of human life; or
(4)
is engaged in the perpetration or attempted perpetration of burglary,
sodomy, rape, robbery, or aggravated arson; is guilty of murder, and
shall suffer such punishment as a court-martial may direct, except that
if found guilty under clause (1) or (4), he shall suffer death or imprisonment
for life as a court-martial may direct.
Elements.
(1) Premeditated
murder.
(a)
That a certain named or described person is dead;
(b)
That the death resulted from the act or omission of the accused;
(c)
That the killing was unlawful; and
(d)
That, at the time of the killing, the accused had a premeditated design
to kill.
(2) Intent to
kill or inflict great bodily harm.
(a)
That a certain named or described person is dead;
(b)
That the death resulted from the act or omission of the accused;
(c)
That the killing was unlawful; and
(d)
That, at the time of the killing, the accused had the intent to kill
or inflict great bodily harm upon a person.
(3) Act inherently
dangerous to another.
(a)
That a certain named or described person is dead;
(b)
That the death resulted from the intentional act of the accused;
(c)
That this act was inherently dangerous to another and showed a wanton
disregard for human life;
(d)
That the accused knew that death or great bodily harm was a probable
consequence of the act; and
(e)
That the killing was unlawful.
(4) During certain
offenses.
(a)
That a certain named or described person is dead;
(b)
That the death resulted from the act or omission of the accused;
(c)
That the killing was unlawful; and
(d)
That, at the time of the killing, the accused was engaged in the perpetration
or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated
arson.
Explanation.
(1) In general.
Killing a human being is unlawful when done without justification
or excuse. See R.C.M.
916. Whether an unlawful killing constitutes
murder or a lesser offense depends upon the circumstances. The offense
is committed at the place of the act or omission although the victim may
have died elsewhere. Whether death occurs at the time of the accused’s
act or omission, or at some time thereafter, it must have followed from
an injury received by the victim which resulted from the act or omission.
(2) Premeditated
murder.
(a)
Premeditation. A murder is not premeditated unless the thought
of taking life was consciously conceived and the act or omission by
which it was taken was intended. Premeditated murder is murder committed
after the formation of a specific intent to kill someone and consideration
of the act intended. It is not necessary that the intention to kill
have been entertained for any particular or consider-able length of
time. When a fixed purpose to kill has been deliberately formed, it
is immaterial how soon afterwards it is put into execution. The existence
of premeditation may be inferred from the circumstances.
(b)
Transferred premeditation. When an accused with a premeditated
design attempted to unlawfully kill a certain person, but, by mistake
or inadvertence, killed another person, the accused is still criminally
responsible for a premeditated murder, because the premeditated design
to kill is transferred from the intended victim to the actual victim.
(c)
Intoxication. Voluntary intoxication (see R.C.M. 916(1)(2))
not amounting to legal insanity may reduce premeditated murder (Article
118(1)) to unpremeditated murder (Article 118(2) or (3)) but it does
not reduce either premeditated murder or unpremeditated murder to manslaughter
(Article 119) or any other
lesser offense.
(3) Intent to
kill or inflict great bodily harm.
(a)
Intent. An unlawful killing without premeditation is also murder
when the accused had either an intent to kill or inflict great bodily
harm. It may be inferred that a person intends the natural and probable
consequences of an act purposely done. Hence, if a person does an intentional
act likely to result in death or great bodily injury, it may be inferred
that death or great bodily injury was in-tended. The intent need not
be directed toward the person killed, or exist for any particular time
before commission of the act, or have previously existed at all. It
is sufficient that it existed at the time of the act or omission (except
if death is inflicted in the heat of a sudden passion caused by adequate
provocation— see paragraph 44). For example, a person committing
housebreaking who strikes and kills the householder attempting to prevent
flight can be guilty of murder even if the householder was not seen
until the moment before striking the fatal blow.
(b)
Great bodily harm. “Great bodily harm” means serious
injury; it does not include minor injuries such as a black eye or a
bloody nose, but it does include fractured or dislocated bones, deep
cuts, torn members of the body, serious damage to internal organs, and
other serious bodily injuries. It is synonymous with the term “grievous
bodily harm.”
(c)
Intoxication. Voluntary intoxication not amounting to legal insanity
does not reduce un-premeditated murder to manslaughter (Article
119) or any other lesser offense.
(4) Act inherently
dangerous to others.
(a)
Wanton disregard of human life. Intentionally engaging in an
act inherently dangerous to another—although without an intent
to cause the death of or great bodily harm to any particular person,
or even with a wish that death will not be caused—may also constitute
murder if the act shows wanton disregard of human life. Such disregard
is characterized by heedlessness of the probable consequences of the
act or omission, or indifference to the likelihood of death or great
bodily harm. Examples include throwing a live grenade toward another
in jest or flying an aircraft very low over one or more persons to
cause
alarm.
(b)
Knowledge. The accused must know that death or great bodily harm
was a probable consequence of the inherently dangerous act. Such knowledge
may be proved by circumstantial evidence.
(5) During certain
offenses.
(a)
In general. The commission or attempted commission of any of
the offenses listed in Article 118(4) is likely to result in homicide,
and when an unlawful killing occurs as a consequence of the perpetration
or attempted perpetration of one of these offenses, the killing is murder.
Under these circumstances it is not a defense that the killing was unintended
or accidental.
(b)
Separate offenses. The perpetration or attempted perpetration
of the burglary, sodomy, rape, robbery, or aggravated arson may be charged
separately from the homicide.
Lesser
included offenses.
(1) Premeditated
murder and murder during certain offenses. Article 118(2) and (3)—murder
(2) All murders
under Article 118.
(a)
Article 119—involuntary
manslaughter
(b)
Article 128—assault;
assault consummated by a battery; aggravated assault
(c)
Article 134—negligent
homicide
(3) Murder as
defined in Article 118(1), (2), and (4).
(a)
Article
80—attempts
(b)
Article 119—voluntary
manslaughter
(c)
Article 134—assault
with intent to commit murder
(d)
Article 134—assault
with intent to commit voluntary manslaughter
Maximum
punishment.
(1) Article 118(1) or (4)
-- death. Mandatory minimum -- imprisonment for life with eligibility
for parole.
(2) Article 118(2)
or (3)—such punishment other than death as a court-martial may direct.
Next Article > Article
119—Manslaughter >
Above
Information from Manual for Court Martial, 2002, Chapter 4, Paragraph
43
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