Opinion of the Court
The accused was convicted by a general court-martial in Korea of the premeditated murder of Private James Lewis and the unpremeditated murder of Private Gerald F. Kirchner in violation of Article 118, Uniform Code of Military Justice, 50 USC § 712.' He was thereupon sentenced to a dishonorable discharge, total forfeitures and confinement at hard labor for life. Intermediate appellate agencies have approved and аffirmed the findings and sentence. We granted the accused’s petition for review to consider the sufficiency of the law officer’s instructions.
The law officer outlined the essential elements of the offense of premeditated murder describing unpremeditated murder as a lesser included offense thereof and outlined its essential elements. Premeditation was defined and the elements: of self-defense were explained to the court. Thе accused raises no contention respecting the sufficiency of these instructions nor is such question presented by the record. The main contention of the accused is that voluntary manslaughter was reasonably rаised by the evidence and the law officer’s failure to instruct upon the essential elements; thereof constituted reversible error.
The nature of the question requires a complete exposition of the facts рresented to the court-martial.
On the morning in question, the accused and several members of his organization, including the victims, had gathered. around a fire built on the reverse slope of a hill they were defending. A discussion of an incident
Testifying in his own behalf, the accused asserted that on the night preceding the fatal incident he and Lewis were alternate sentinels guarding, their unit’s front line position. When Lewis' failed to relieve him at the appointed time, the accused was required to remain on guard for an additional two-hour period. When Lewis awakened the accused, the accused protested because of Lewis’s earlier failure to perform his duties and was thereupon kicked in the face and threatened with a knife. He then remained оn guard for approximately six consecutive hours. When the incident was discussed the following morning about the fire, Lewis declared that if the accused was not removed from his foxhole he would break his neck, or the accused would break his. Considering this as a joke the accused returned to his bunker to obtain some sugar. While there he took his rifle, slung it over his shoulder, for in the front line men normally carry their weapons at all times, and returned to the fire. As he neared the group Lewis jumped at him and because the accused was frightened, he shot Lewis.
In United States v. Sylvester Clark (No. 190),
Article 119 of the Uniform Code of Military Justice, 50 USC § 713, provides :
“(a) Any person subject to this code who, with an intent to kill or inflict great bodily harm,' unlawfully kills a human being in the.heat of sudden passion caused by adequate provocation, is guilty of voluntary manslaughter. . .
The distinguishing elements of this offense are heat of passion, and, adequate provocation. Under the provisions of this Article an unlawful killing will be reduced to voluntary manslaughter only when these elements co-exist, and neither passion alone, however violent, nor provocation alone, however adequate, will suffice. See McHargue v. Commonwealth, 231 Ky 82,
“The provocation must be such as the law deems adequate to excite uncontrollable passion in the mind of a reasonable man, and the act of killing must be committed under and because of the passion. The provocation must not be sought or induced as an excuse for killing or doing harm. If, judged by the standard of a reasonable man, sufficient cooling time elapses between the provocation and the killing, it is murder, even if the passion of the particular accused persists.”
Assuming the truth of each statement made by the accused in explanation of his actions, we conclude that neither of the distinguishing factors of voluntary manslaughter were shown. While the assault and accompanying threats of further violence made by Lewis during the night preceding the shooting were wholly unjustified and calculated to arouse the passions of a reasonable man, the. danger to the accused terminated when he .complied with Lewis’s demands. Any threats made by,Lewis the following morning, were by their very terms conditioned upon future events and were unaccompanied by any action designed to carry them out. There remains, then, only the claim that Lewis jumped the accused, thus precipitating the fatal shooting. Without reference to the other facts such a move was insufficient to excite in the mind of a reasonable man an uncontrollable passion. Lewis was unarmed; there were nearby several individuals upon whom thе accused could call for assistance; there was present at • least one noncommis-sioned officer charged with the responsibility of maintaining . order. Under these circumstances the action of Lewis did not constitute adequate provocation to justify the use of a deadly weapon.
“. . . Mere, words, however gross or insulting,. will not justify taking life, and where a homicide is committed' under no other provocation than irritating language, thе killing will be murder in law. The same is true of gestures, unless they be of a character manifestly threatening to life — as where a pistol or other deadly weapon is evidently attempted to be drawn and used; in such case the crimе committed may be reduced to manslaughter. In any case where the provocation, though material, is not excessive, as where a bare trespass is committed on property other than a dwelling, or where thе person is assailed but not seriously . . . , the law will in general hold the killing to be not manslaughter but murder.” [Winthrop’s Military Law and Precedents, 2d ed., 1920 Reprint, page 675;]
Considering the movement of Lewis in its relation to all the other facts present, as we are required to do, the absence of a reasonable basis for concluding that voluntary manslaughter was in issue is crystal clear. After the argument had subsided, the accused withdrew to his bunker, armed himself with a weapon and returned to the group carrying the lethal instrument in a position of readiness. Before the victim could make his purpose clear, the accused fired and killed him. These actions speak louder than any words. They are susceptible of but one meaning: that the accused conceived the intent to kill his victim, procured the means, and. carried his intention into' execution. In terms of legal connotation this is premeditated murder and nothing else. United States v. Ginn (No. 263),
In the military system, and in civilian jurisdictions generally, self-defense is-
The final contention of the accused, asserted under the specification alleging the unpremeditated murder of Private Kirchner, is that in the absence of ill-will or animosity towards Kirchner, and of an intent to kill him, the issues of involuntary manslaughter and negligent homicide were reasonably raised by the evidence, and failure to instruct thereon constitutes reversible error. The Supreme Court of North Carolina considered a similar contention in State v. Burnеy, 215 NC 598,
The evidence did not reasonably raise any issue of a lesser included offense. Accordingly, there was no necessity to instruct thereon. Consequently, the instructions of the law officer were sufficient.
The decision of the board of review is affirmed.