Lead Opinion
Opinion of the Court
In February 1980, appellant was tried at Camp Casey, Republic of Korea, by a military judge sitting as a general court-martial. Among other offenses, he was charged with four specifications of attempt
The judge imposed a sentence of dishonorable discharge, confinement at hard labor for 7 years, total forfeitures, and reduction to the grade of Private E-l. The convening authority approved the findings and sentence; and the Army Court of Military Review affirmed in a short form opinion.
We granted review (
WAS AN ERRONEOUS STANDARD OF LAW APPLIED AT THE TRIAL LEVEL AND BY THE STAFF JUDGE ADVOCATE IN DETERMINING THE INTENT REQUIRED FOR THE OFFENSE OF ATTEMPTED MURDER.
I
The evidence revealed that Roa had a grudge against the military police and that, with his full encouragement and support, a fellow soldier threw a hand grenade into a military police station where four persons were present. In view of the high risk of homicide that accompanied such conduct and the inference that persons intend the natural and probable consequences of their acts, this evidence fully sufficed to sustain the judge’s findings that appellant was guilty of attempted murder. Therefore, since the defense counsel did not request special findings, see para. 74i, Manual for Courts-Martial, United States, 1969 (Revised edition), usually it would be presumed that the judge employed a legally correct standard in reaching his findings. Cf. United States v. Gerard,
In the present case, the Government supplied the defense with a bill of particulars which stated two theories of liability for the charged offenses: (a) “that the accused attempted to murder the stated victims by engaging in an act which was inherently dangerous to others and evinced a wanton disregard of human life,” trial counsel contending such conduct would “be an attempt to violate the provisions of Article 118(3), UCMJ,” 10 U.S.C. § 918(3), and (b) “that there will be evidence to show intent on the part of the accused to ‘do something’ to ‘teach them a lesson,’ and thus kill or inflict great bodily harm,” so that throwing the grenade “would ... be in attempted violation of the provisions of Article 118(2), UCMJ.” When defense counsel moved early in the trial to compel the prosecution to elect between its two theories, the military judge — although deferring a ruling on the motion — remarked that “it would seem to me that 118(3) with the other elements of proof certainly is the applicable one.”
Thereafter, trial counsel referred in his opening statement only to liability based on “inherent disregard for human life and the probable consequences that would have resulted from his act.” Moreover, during presentation of the government’s case, the judge overruled a defense objection because the evidence “goes to the 118(3) offense.” Subsequently, in arguing as to guilt, trial counsel relied almost exclusively on appellant’s wanton disregard of human life as the basis for convicting him of attempted murder.
At no point in the trial did the judge repudiate in any way the theory that Roa would be guilty of attempted murder if, when the grenade was thrown, he entertained the state of mind specified in Article 118(3) of the Uniform Code of Military Jus
Our cases, however, have made it perfectly clear that attempted murder requires a specific intent to kill. See United States v. Thomas,
As stated in United States v. Perry, supra at 639 n. 1:
Although one who does not intend to kill may commit the kind of murder denounced by Article 118(3), Uniform Code of Military Justice, 10 U.S.C. § 918(3), intentionally engaging in “an act which is inherently dangerous to others, and evinces a wanton disregard of human life,” without intent to kill, does not constitute attempted murder. A particularly interesting application of this rule is found in United States v. Creek,39 C.M.R. 666 (A.B.R.1968).
See also United States v. Walentiny,
Article 118(3) was intended to deal with the situation where death has occurred as a result of conduct which revealed the actor’s wanton disregard for human life, but was not directed at a particular individual. United States v. Dacanay,
Appellate defense counsel have suggested that the government’s theory would produce some anomalous results. Thus, if a servicemember fired a shot into a large crowd with the intent to kill a single person, but death did not result, he would be guilty of an attempt to murder that person. However, he could not be charged with attempts to murder the other persóns in the crowd, since we have held that intent to kill a particular person is quite distinct from wanton disregard for the lives of others. United States v. Dacanay, supra; United States v. Holsey, supra; United States v. Davis, supra. On the other hand, an accused who had fired into the same crowd with no intent to kill anyone but with a wanton disregard for human life and had injured no one could, under the government’s theory, be convicted of a separate attempt to murder every person in the crowd.
By way of analogy, despite the provisions of Article 118(2), whereunder intent to inflict grievous bodily harm will allow conviction for murder, that intent will not suffice to sustain findings of guilty of attempted murder or assault with intent to murder.
II
Since an appreciable risk exists that the judge’s findings of guilt were tainted by application of an erroneous legal standard, remedial action must be taken. Among the remedies that come to mind are a complete rehearing as to guilt;
III
The decision of the United States Army Court of Military Review is reversed. The findings of guilty of attempted murder (but not of aggravated assault) are set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review for further proceedings in light of this opinion.
Notes
. Pursuant to appellant’s pleas, the judge also found him guilty of wrongful possession of an incendiary device, a Ration Control Plate, and an explosive device; wrongful damage to a military police station; wrongful possession of “an undetermined amount of marihuana,” in violation of Articles 92, 108, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 908 and 934, respectively.
. The language of the bill of particulars suggests that the trial counsel also assumed that, by reason of Article 118(2), proof of intent to do great bodily harm would suffice to show the
. Thus, intoxication may relieve of culpability for an attempt to commit an offense such as rape or assault with intent to commit rape when it would not be a defense in a prosecution for commission of the principal offense.
. In the event of a rehearing, no basis would exist to allow withdrawal by appellant of his accepted pleas of guilty to the lesser-included offenses.
. In such a proceeding appellant can request special findings if he chooses. Of course, if the judge were to change his general findings of guilt, he would then need to conduct a rehearing as to sentence.
Concurrence Opinion
(concurring in the result):
My Brothers say that “[o]ur cases . . . have made it perfectly clear that attempted murder requires a specific intent to kill.”
Although the form of each of the specifications in issue brings this case within subdivision (2) and, therefore, justifies the statement and the result reached by my Brothers, I think it important to point out that a differently-worded specification related to subdivision (3) of Article 118 would constitute a valid charge of a type of attempted murder that does not require a specific intent to kill.
Military law defines an attempt as “[a]n act, done with specific intent to commit an offense under” the Uniform Code. Article 80(a), UCMJ, 10 U.S.C. § 880(a). Murder is an offense under the Code; there are four different types.
*213 (4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; is guilty of murder, and shall suffer such punishment as a court-martial may direct,*214 except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.
It is not an attempt when every act intended by the accused could be completed without committing an offense, even though the accused may at the time believe he is committing an offense.
(Emphasis supplied.) In my opinion, therefore, a service member can, without entertaining a specific intent to kill, be guilty of attempted murder of the kind specified in subdivision (3) of Article 118 if he does an act, intending to follow it with others, which constitute conduct or create a condition “inherently dangerous to others and evincpng] a wanton disregard of human life.”
How then did the statement “attempted murder requires a specific intent to kill” evolve? I see it as the result of the confluence of two lines of decision. One line deals with the form of pleading an offense; the other, with the relationship of attempted murder to types of assault in military law. The cases cited in the principal opinion are part of one or the other of these two lines of precedent.
The line of opinion predicated upon the form of pleading postulates that, where an offense can be committed in alternative ways, the factual allegations of the specification of the charge can limit the proof to one of the alternatives. That concept was perhaps most explicitly stated in United States v. Hemp,
Murder, like desertion, can be committed by the same act with different intentions. It can also be committed by different acts unaccompanied by a specific intent to kill. Under subdivision (2) of Article 118, a person subject to the Code commits murder when he unlawfully kills a human being without justification or excuse and “intends to kill or inflict great bodily harm.” Under subdivision (3) of the article, the unlawful killing of a human being without justification or excuse is murder when the killer “is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life.” The difference between these subdivisions is evident, but, it would not be, I believe, tautological to say that an act under subdivision (2) causing
In Carroll, the accused was charged with attempting to murder a named person. The Court determined, as in Hemp, that the instructions to the members of the court-martial were prejudicially erroneous because they allowed the members to predicate a finding of guilty of attempted murder, not just for an act accompanying a specific intent, as provided in subdivision (2), but for an act done while in the perpetration of a robbery, one of the offenses enumerated in subdivision (4) of Article 118, which does not require a specific intent. In material part, the Court said:
The court-martial could reasonably believe, on the basis of the instruction, it was sufficient to find merely that the shooting occurred in the course of a robbery. It might therefore conclude it was unnecessary to find that the accused entertained a specific intent to kill; the latter finding, however, is required by the allegations of the specification.
Of the remaining cases cited by the majority, United States v. Whitfield,
United States v. Thomas,
That . . . each of the appellants did:
1. A certain overt act.
2. The act was done with the specific intent to commit the offense of rape; that is, each intended to have sexual intercourse with a female not his wife by force and without her consent.
Id. at 291,
The remaining case cited by the majority, United States v. Pitts,
Having earlier determined in United States v. Malone,
Pitts did not decide anything regarding attempted murder; the offense charged was assault with intent to murder and the offense found and discussed was assault with intent to commit voluntary manslaughter. Malone also did not discuss attempted murder. Neither did Floyd. All were concerned with an assault-type offense and its relationship to other assaults under the Code. This relationship led Pitts to confirm the statement in Malone that “when used as a basis for an assault charge — the term ‘murder’ must be limited to homicides involving an intent to kill,” not an intent to inflict great bodily harm. The reason for that limitation, said the Court in Malone, is that “[otherwise, in certain factual situations, assault with intent to murder may be equivalent to the aggravated assaults specified in Article 128 . .. [UCMJ, 10 U.S.C. § 928] and other aggravated assaults included within Article 134.” United States v. Malone, supra at 475,
Assuredly, Pitts mirrors the Floyd-Malone principle that, as a form of pleading, an allegation of assault with intent to murder requires proof of a specific intent to kill. Although nothing in that trio of cases, or in their lineal descendants, expressly holds that an allegation of attempted murder also requires a specific intent to kill, a charge of that kind is commonly understood to mean an act with a specific intent to kill. In Floyd, for example, the Government conceded that, when the subject of an attempt is a particular person, the word “ ‘murder’ is ... understood to mean ‘kill.’ ”
I join in reversing the decision of the United States Army Court of Military Review as to the findings of guilty of the offenses charged and the sentence. I would, however, affirm findings of guilty of the lesser offense to which the accused pleaded guilty and return the record of trial to the Judge Advocate General of the Army for submission to the Court of Military Review for reassessment of the sentence.
. Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918, reads as follows:
Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or
. At the time of United States v. Hemp,
. United States v. Perry,
. Both murder, as defined in Article 118(2), UCMJ, 10 U.S.C. § 918(2), and voluntary manslaughter, as defined in Article 119(a), UCMJ, 10 U.S.C. § 919(a), require the unlawful killing of a human being with an intent “to kill or inflict great bodily harm.”