CORE CRIMINAL LAW SUBJECTS: Crimes: Article 119 - Manslaughter

2012 (September Term)

United States v. Bennitt, 72 M.J. 266 (any servicememmber who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being (1) by culpable negligence, or (2) while perpetrating or attempting to perpetrate an offense, other than those named in [Article 118(4), UCMJ], directly affecting the person, is guilty of involuntary manslaughter).

(a conviction for involuntary manslaughter cannot be sustained solely by evidence that an accused sold someone a drug and that the purchaser later died from an overdose of that drug; on the other hand, when the seller has gone further and assisted the purchaser in injecting or ingesting the drug, the sale becomes one which does directly affect the person for purposes of Article 119(b)(2)). 

(with respect to manslaughter under Article 119(b)(2), UCMJ, offenses directly affecting the person are limited to those in which physical force is applied directly against an individual’s body). 

(appellant’s conduct in crushing a pill containing an illegal drug that was then ingested by his civilian girlfriend, who then died from a drug overdose, could not support his conviction for involuntary manslaughter because his aiding and abetting of the victim’s wrongful drug use did not constitute physical assistance such that it was an offense directly affecting the person). 

2010 (September Term)

United States v. McMurrin, 70 M.J. 15 (the elements of involuntary manslaughter are (1) that a certain person is dead; (2) that this death resulted from an act or omission of the accused; (3) that the killing was unlawful; and (4) that the act or omission constituted culpable negligence, or occurred while the accused was perpetrating one of certain listed offenses). 


70 M.J. 15 (negligent homicide is not an LIO of involuntary manslaughter; prejudice to good order and discipline and service discredit are not subsumed within the elements of involuntary manslaughter). 

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). 


(the heat of passion caused by adequate provocation necessary for the offense of voluntary manslaughter may result from fear or rage; the provocation must be adequate to excite uncontrollable passion in a reasonable person, and the act of killing must be committed under and because of that passion; although a slight blow with the hand or fist cannot serve as adequate provocation, in certain circumstances, the unlawful infliction of great bodily harm may constitute adequate provocation).


(the evidence in this case was legally sufficient to support a finding that the crime of attempted voluntary manslaughter was committed in the heat of sudden passion caused by adequate provocation, where testimony from both the accused and the victim established that the two were insulting and swearing at each other before and during their fight and where testimony from the accused indicated that the victim had hit him several times and was coming after him again when he raised his rifle and fired). 


(the accused was provided fair notice and adequate opportunity to defend on the lesser included offense of attempted voluntary manslaughter, where the accused did not claim that attempted voluntary manslaughter was not a lesser included offense of the charged offense of attempted premeditated murder, where during the government’s case-in-chief and prior to the accused’s testimony, the military judge made it clear that he intended to instruct on this lesser included offense and gave defense counsel the option to continue the case for several days, and where defense counsel accepted the additional time). 


United States v. Riley, 58 MJ 305 (culpable negligence is a degree of carelessness greater than simple negligence; culpable negligence is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission; an objective test is applied in determining whether the consequences of an act are foreseeable).

(we are not satisfied that a reasonable factfinder could conclude that appellant’s negligence rose to the level of culpable negligence, i.e., a culpable disregard for the foreseeable consequences to her baby; an experienced medical professional would be aware of the potential for an explosive and unexpected birth, sufficient to suddenly propel the baby onto the hard floor, and consequently would be likely to foresee death as a consequence of appellant’s acts; this case, however, does not involve an experienced medical professional; instead, it involves an inexperienced, immature lay person, giving birth for the first time; we do not believe that a reasonable factfinder could find beyond a reasonable doubt that appellant culpably disregarded the likelihood of the sudden and explosive birth of her baby and her baby’s death as a consequence of her acts; thus, we hold that the evidence in this case was legally insufficient to support a conviction of involuntary manslaughter in violation of Article 119, UCMJ, because a reasonable could not find a culpable disregard for the foreseeable consequences to others beyond a reasonable doubt).


United States v. Richards, 56 MJ 282 (active participation in a beating that so incapacitated the victim and rendered him helpless against the attack is a satisfactory basis upon which a rational factfinder could have found that appellant's kicking aided and abetted another’s actual killing the felled victim at some point during this assault).

(as to appellant's intent to kill or inflict great bodily harm, active participation in a beating that so incapacitated the victim and rendered him helpless against the attack provides a legally sufficient basis upon which the members could have inferred that all of the assailants, including appellant, acted with such intent; appellant was an active, voluntary perpetrator of the assaultive kicking while the victim was on the ground for a number of minutes, and appellant voluntarily participated in a chain of events that prevented the victim’s escape).

(Article 119(a) does not require that appellant intended any particular means of inflicting death or great bodily harm but, rather, that he intended the consequence; the precise means by which the consequence of death actually was visited (a knife rather than the kicking) does not diminish appellant’s culpability for aiding and abetting a criminal assault "with an intent to kill or inflict great bodily harm.").


United States v. Oxendine, 55 MJ 323 (culpable negligence is defined as a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission).

(the basis of a charge of involuntary manslaughter may be a negligent act or omission which, when viewed in the light of human experience, might foreseeably result in the death of another).

(the test for foreseeability is whether a reasonable person, in view of all the circumstances, would have realized the substantial and unjustified danger created by his acts).

(having decided to participate with the deceased and other Marines in a dangerous joint enterprise, appellant was bound by the circumstances that would have put a reasonable person on notice as to the risk he was creating or helping to create, and the foreseeable consequences of that risk; it was not necessary the appellant himself be aware of the substantial risk he is creating, but only that a reasonable person would have realized the risk).

(a deceased’s negligence alone was not a superseding cause sufficient to create the proximate cause of his death required in the context of this particular joint enterprise to exonerate appellant where the objective of the game could not be achieved but for the assistance of others holding the deceased outside the window; thus, death would not have resulted had appellant not agreed to be the holder, at least as far as appellant’s liability is concerned).

(it is possible for negligence of the deceased to intervene between an accused’s conduct and the fatal result in such a manner as to constitute a superseding cause, completely eliminating the defendant form the field of proximate causation; however, this is true only in situations in which the second act of negligence looms so large in comparison with the first, that the first is not to be regarded as a substantial factor in the final result).


United States v. Nelson, 53 MJ 319 (under Article 119(b), culpable negligence arises only from a legal duty to act; when there is no duty to act, there can be no neglect).

(under Article 119(b), a parent is culpably negligent in failing to provide medical assistance when a reasonable person in such circumstances would have realized the substantial and unjustified danger created by his act).

(culpable negligence in fulfilling the parental duty to provide a child with medical assistance is a question of fact to be decided on the basis of all applicable evidence).

(evidence was legally sufficient to show culpable negligence in fulfilling the parental duty to provide a child with medical assistance where appellant made a conscious decision to not invoke medical assistance during her pregnancy or childbirth and then was not attentive to the health or medical condition of her child for over an hour after delivery).

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