CORE CRIMINAL LAW SUBJECTS: Crimes: Article 118 - Murder

2010 (September Term)

United States v. Girouard, 70 M.J. 5 (premeditated murder under Article 118, UCMJ, requires: (1) a death; (2) that the accused caused the death by an act or omission; (3) the killing was unlawful; and (4) at the time of the killing, the accused had a premeditated design to kill). 


(assuming without deciding that simple negligence is subsumed within premeditation, it is nonetheless apparent that negligent homicide contains additional elements that are not elements of premeditated murder: the terminal elements of Article 134, UCMJ, prejudice to good order or service discredit; therefore, negligent homicide is not an LIO of premeditated murder). 

2008 (Transition)

United States v. Miergrimado, 66 M.J. 34 (to sustain a conviction for attempted premeditated murder, the government must prove that at the time of the killing, the accused had a premeditated design to kill; premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended; the offense of voluntary manslaughter, on the other hand, requires the intent to kill or inflict great bodily harm, and does not require premeditation; thus, premeditation is a distinguishing factual element). 



United States v. Dobson, 63 M.J. 1 (unpremeditated murder does not require a fixed intent to kill a specific person after considering the specific act; a person may be convicted of unpremeditated murder even if the person had no intent to kill prior to taking an act, so long as the act itself was intentional and likely to result in death or great bodily harm).


United States v. Szentmiklosi, 55 MJ 487 (if during the course of a robbery, a killing results, the robbery and the resulting homicide are separately chargeable).


United States v. Nelson, 53 MJ 319 (because homicide offenses under the UCMJ are derived from the common law, it is appropriate to construe Articles 118 and 119 – including the phrase “human being” – in the context of the common law; other important public policy concerns surrounding homicide of a child should be resolved in a legislative rather than a judicial forum).

(under the UCMJ, for homicide offenses involving a child, the modern common law view defines “human being” as a child that was “born alive,” and that “born alive” means that the child was wholly expelled from its mother’s body and possessed or was capable of an existence by means of a circulation independent of the mother).


United States v. Gray, 51 MJ 1 (rejecting argument that there is no meaningful distinction between premeditated and unpremeditated murder, and approving instruction that the principal difference between premeditated murder and unpremeditated murder is that for premeditated murder the accused must have had the premeditated design to kill, that is, the accused must have considered the act prior to the application of force and must have had the specific intent to kill, whereas unpremeditated murder requires the specific intent to kill or inflict great bodily harm without premeditation; see United States v. Loving, 41 MJ 213, 279-280 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

United States v. Henderson, 52 MJ 14 (evidence, including appellant’s admission that he stabbed the victim numerous times and other evidence indicating that victim was stabbed eight times including one time in the heart and four other times in life-threatening locations, and evidence indicating that appellant kicked the victim in the head as he lay wounded in his mother’s arms, was legally sufficient to support finding of unpremeditated murder).

(Court of Criminal Appeals did not erroneously shift the burden by indicating that the prosecution had no burden to disprove heat of passion and adequate provocation; rather, court found, relying on its factfinding powers, that the provocation itself was insufficient to undermine finding of guilty of unpremeditated murder).

United States v. Martinez, 52 MJ 22 (the negligence necessary for conviction of involuntary manslaughter requires a legal duty, and military law recognizes a duty on the part of a parent to provide medical assistance to his or her child; although appellant was not the biological father of his wife’s child, there was ample evidence in the record to find that appellant, under the circumstances of this case, had a parental duty as co-head of household to provide medical assistance to this child).

(members could find that appellant’s reliance on a suspected child abuser’s assurances was an unreasonable response to his duty to provide medical care to this child, and thus sufficient for offense of voluntary manslaughter, where:  (1) appellant knew baby had been repeatedly bruised while in mother’s care; (2) appellant suspected his wife of abusing child; (3) evidence of recent physical battery was readily observable in appellant’s home; and, (4) the child’s body was severely bruised when he died, and appellant observed numerous bruises on the child’s body the week before the child died).

(evidence of culpable negligence, specifically the requirement for culpable disregard for the foreseeable consequences to others, to support a finding of involuntary manslaughter was legally sufficient where the evidence showed:  (1) the victim in this case would have displayed a number of symptoms which would not reasonably support conclusion that victim merely suffered from flu; (2) appellant was fully aware that victim sustained repeated assaults while in the mother’s care and had suggested medical treatment; and, (3) expert testimony indicated that most recent bruising was pronounced in appearance and might suggest intentional battering to even a layman).

United States v. Wells, 52 MJ 126 (testimony of appellant concerning a heated domestic dispute, the presence of the victim exacerbating this dispute, the victim’s display of a gun, appellant’s belief that a shot was fired at him as he left initially, and the presence of the victim with a gun when appellant returned, placed heat of passion and adequate provocation at issue in the case so as to require instruction on lesser-included offense of voluntary manslaughter).

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