Opinion of the Court
Petitioner was tried by general court-martial in Korea for the offense of premeditated murder in violation of Article of War 92, 10 U.S.C. § 1564. He was found guilty, by exceptions and substitutions, of voluntary manslaughter in violation of Article of War 93, 10 U.S.C. § 1565. He was sentenced on July 17, 1951, to a dishonorable discharge, total forfeiture of pay, and confinement for ten years. The convening authority approved and an Army board of review affirmed. We granted petition for review in order to consider substantial issues of military law raised by petitioner. Disposition of the case requires a summary of the evidence.
In the early evening of May 29, 1951, petitioner was in a headquarters tent of the 558th Transportation Amphibious Truck Company stationed at Inchon, Korea. Corporal McAdoo, the deceased, еntered the tent and addressed a general complaint to those present concerning the prices charged by various Korean women for laundry. There were some Korean laundry women present, and the deceased took hold of one of the
Later, at about 10:30 p.m. or 11:00 p.m. the same day, petitioner was lying on a bunk in his tent with a group of soldiers. The deceased entered the tent and went to the bunk occupied by Sergeant Eaton which was at the end of the tent and opposite to petitioner’s bunk. The deceased sat down, spoke to Sergeant Eaton for a while, and then еxhibited a P-38 pistol. After displaying the pistol, the deceased replaced it in the pocket of his jacket. He then walked over to the bunk on which petitioner was lying and spoke to him, saying-“Let’s have it called off, let’s shake the thing off.” Petitioner was not heard to make any reply to deceased’s offer. The deceased then went to a chair at the opposite end оf the tent and sat down. Petitioner arose and walked out of the rear door of the tent. He re-entered the tent through the front door several minutes later, armed with a .45 caliber automatic pistol. He pointed the pistol at the deceased, and ordered him to remove his hands from his jacket pocket. Petitioner testified that after he observed the deceased move his arm, he interpreted it as a movement to get the gun out and fired one shot. The deceased stood up and took several steps. Petitioner then fired two or three times and the deceased collapsed. At the time the deceased collapsed, first aid was rendered and thereafter an ambulance was called. Upon the arrival of the ambulance, the deceased was placed on a stretcher. A P-38 automatic was found on the floor under his body. He was removed to the 181st Evacuation Hospital, and died as a result of the wounds on June 19, 1951.
Petitioner was described as a- quiet soldier. The deceased’s disposition was variously described by defense witnesses. A friend of petitioner characterized the deceased as “something on the order of a bully” and amplified this statement by saying that the deceased was “ready at all times to start an argument.” A company officer described the deceased as “an active sort of person and very antagonistic.” Prior to the shooting, when he saw the deceased on the evening of May 29, 1951, he described his disposition as “pretty joyful in spirit.” The commanding officer of both petitioner and the deceased stated that he had known the latter for a period of two years, that he was not quarrelsome but “he always had some sort of comment or something to say when you told him to do something.” The first sergeant of the unit testified to an incident between petitioner and the deceased that occurred during the prior year when the unit first arrived in Korea. The deceаsed lay on petitioner’s bunk and refused to get up at the latter’s request. Petitioner appealed to the first sergeant who ordered the deceased to get up. The deceased complied with the request, and as he was leaving grasped petitioner by the wrist and attempted to pull the latter out of the tent. Petitioner then held on to the supports of the tent door and рulled away. After this incident petitioner and the deceased were friends.
The first error alleged is the failure of the law officer to instruct the court on the law of self-defense. In this respect we note that defense counsel made no request for such an instruction. It is the defense contention that it was the law officer’s duty to so instruct even in the absence of a request.
The necеssity of instructions by the law officer on affirmative defenses is a novel issue. In deciding this issue, it is appropriate that we should note again our fundamental concepts of policy in relation to instructions. Congress, in the Uniform Code of Military Justice, 50 U.S.C. §§ 551-736, has endeavored, whenever possible, to bring courts-martial procedure into conformity with that obtaining in civilian criminal courts. This is especiаlly true as to the func
The statutory basis for the law relating to instructions lies in Article 51 (c) of the Uniform Code of Military Justice, 50 U.S.C. § 626, which provides in part as follows:
“Before a vote is taken on the findings, thе law officer of a general court-martial and the president of a special court-martial shall, in the presence of the accused and counsel, instruct the court as to the elements of the offense . . . .”
This statutory provision is amplified in Paragraph 73 of the Manual for Courts-Martial, 1951. The obvious in-tendment of Article 51 (c) is to provide the court with the framework of legal issues tо which the evidence must be fitted in order to render intelligent findings. “Whatever the degree of guilt, those charged with a Federal crime are entitled to be tried by the standards of guilt which Congress has prescribed.” Screws v. United States,
Applying theáe standards to the necessity of instructions on certain affirmative defenses, we think it may fairly be said, as a generality, that the court is insufficiently informed as. to the “law of the case” without legal explanation of these defenses, where properly raised. We are here concerned with the issue of self-defense under a charge of premeditated murder. Murder is recognized, both at common-law and by most American statutes to be but one division of generic homicide. Wharton, Criminal Law, 12th ed. §■ 418; United States v. Bartholomew, (No. 166),
We think there is as much necessity, in a proper case, for instructions as to circumstances which will reduce murder to excusable homicide as there is for instructions as to circumstances that will reduce murder to manslaughter or negligent homicide. Murder is one of the most serious offenses known to society. An uninformed court-martial cannot know the technical legal view of the circumstances which will excuse a killing otherwise classified as murder. In order to fulfill their responsibility to both society and the accused, it is essential that, in a proper case, a court-martial be informed as to the law in relation to
It does not follow from what we have said that there must be an instruction on self-defense under every charge of willful and unlawful killing. Where there is no predicate whatsoever in the evidence — either defense or prosecution —for an inference of self-defense, it would be a useless and even confusing gesture to charge the court on this issue. On the othеr hand, if it clearly appears from the evidence that there is a sound theory of self-defense, an appropriate instruction must be given. We are here confronted with the necessity of establishing a test for cases which, like the one under discussion, fit neither of these extremes. Defense contends that if there is any evidence supporting a claim of self-defense, however weak or doubtful it may be, the issue must be submitted to the court with appropriate instructions, even in the absence of a request by defense counsel. Several Federal cases are cited in support of this proposition. However, one of these—Tatum v. United States,
The law officer is required by statute, as already noted, to instruct the court as to the elements of the offense. We have mentioned, supra, the decision in which we have held that this requires instruction on the elements of lesser included offenses fairly raised by the evidence. We are persuaded that, since the duty to instruct on self-defense must spring from the same source as, and is directly related to, the duty to instruct on lesser included offenses, the same test should apply in each instance. There must be some evidence from which a reasonable inference can be drawn that the affirmative defense was in issue. This view is entirely consistent with the test established by most civilian criminal courts. See State v. Greer,
Applying the test enunciated above to the circumstances of this case, we conclude that there was no obligation for the law officer to instruct on the law of self-defense. The crime of murder being such a serious offense in the eyes of society, courts have been inclined to view with care a claim by the killer that he acted in self-defense. Thus, the right to self-defense generally exists in sudden and violent сases, where delay would put the party in immediate danger of the loss of life or great bodily harm. People v. Fleming,
“. . . To excuse a person for a killing on the ground of self-defense, he must have believed on reasonable grounds that killing was necessary to save his life or the lives of those whom he might lawfully protect, or to prevent great bodily harm to himself or them. The danger must be beliеved on reasonable grounds to be imminent, . . . .”
Here, the accused was not attacked. The evidence of record shows that the deceased may have only desired to make amends. Although it is true that one has the same right to defend against threatened attack, as he has to defend against an actual attack, this record shows no real threats immediately, or for a reasonable time preceding the shooting. Past threats and hostile actions may be looked to only in connection with present demonstrations.
However, regardless of how the situation may have appeared to the accused, the fact remains that he left the tent, procured a weapon, and returned. Thereafter, gun in hand, he ordered the deceased to remоve his hands from his pockets and, when the latter did not comply, shot him several times. Indeed, the very act which the accused ordered the deceased to perform — remove his hand from his pocket — was the act which the accused testified at the trial caused him to fear for his life. Having pursued the course outlined above, and regardless of the initial impression made on him, the accused was in no position to claim self-defense. See State v. Shepherd,
In appraising the evidence, we have given due consideration to the testimony of the accused that he fired only because the deceased was “trying to get his weapon out.” This, however, occurred after the accused had armed himself and returned. Indeed, at this juncture, the deceased may well have had justification for protecting himself against a possible аttack by the accused. See Johnson v. Commonwealth,
The second issue concerns the failure of the law officer to instruct the court on the elements of voluntary manslaughter, the offense of which the aсcused was found guilty. It is urged that the decision of this Court in United States
Finally, it is urged that the evidence will not support a finding of voluntary manslaughter, and that the finding, under a charge of murder, cannot therefore stand. This contention was adequately dealt with in our opinion in United States v. Bartholomew, supra. Here, as there, petitioner was found guilty of a lesser offense where the evidence, in our opinion, clearly supports a greater. Petitioner is in no position to complain.
This disposes of the errors raised. We have examined the record carefully, and find no other errors requiring discussion. The decision of the board of review is, therefore, affirmed.