United
States v. McMurrin, 70 M.J. 15 (the elements of
negligent homicide are (1) that a certain person is dead; (2)
that this
death resulted from an act or failure to act of the accused; (3) that
the
killing was unlawful; (4) that the accused’s act or failure to act that
caused
the death amounted to simple negligence; and (5) that, under the
circumstances,
the conduct of the accused was to the prejudice of good order and
discipline in
the armed forces or was of a nature to bring discredit upon the armed
forces).
(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).
United
States v. Girouard, 70 M.J. 5 (negligent
homicide under Article 134, UCMJ,
requires: (1) that a certain person is dead; (2) that this death
resulted from
an act or failure to act of the accused; (3) that the killing by the
accused
was unlawful; (4) that the accused’s act or failure to act that caused
the
death amounted to simple negligence; and (5) that, under the
circumstances, the
conduct of the accused was to the prejudice of good order and
discipline in the
armed forces or was of a nature to bring discredit upon the armed
forces).
(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).
United
States v. Riley, 58 MJ 305 (simple negligence is
the
absence of due care, that is, an act or omission of a person who is
under a
duty to use due care which exhibits a lack of that degree of care of
the safety
of others which a reasonably careful person would have exercised under
the same
or similar circumstances).
(the CCA concluded that appellant’s delivery of her baby while
sitting on a
toilet with nothing beneath her but a hard ceramic tile floor was the
specific
act of negligence that was the proximate cause of the baby’s death;
once the
CCA reached a legal conclusion that the evidence was sufficient as a
matter of
fact and law to establish appellant’s negligence as the proximate cause
of
death, it was not necessary for the court to make any further
determination as
to the specific cause of death).
(appellant realized while she was in the bathroom that she was about
to give
birth; she was in sufficient control of her mental and physical
faculties to
remove her clothing and shoes; knowing that childbirth was underway,
she chose
to sit on the toilet seat; based on these facts, we hold that a
reasonable
factfinder could find beyond a reasonable doubt that it was negligent
for
appellant to position herself on the toilet seat instead of on the
floor, where
the danger of injury to her baby would have been lessened; we further
hold that
a reasonable factfinder could find beyond a reasonable doubt that
appellant’s negligence
played a material role in the victim’s decease; thus, we hold that the
evidence
is legally sufficient to support a conviction of negligent homicide in
violation of Article 134, UCMJ).