2 C.M.A. 59 | United States Court of Military Appeals | 1952
Opinion of the Court
The accused was tried by general court-martial in Korea for assault with intent to commit murder. He was found guilty and was sentenced to a dishonorable discharge, total forfeiture of pay and confinement for fifteen years. Army reviewing authorities have upheld the findings and sentence.
The record shows the accused became involved in an argument with another soldier which resulted in a fight. The other soldier struck the accused — who was a much smaller man — “and just about knocked him out of the tent” where the altercation took place. Some three to five minutes later, the accused returned with a carbine. He shot and wounded the other soldier.
At the close of the case, the law officer instructed the court as follows:
“(a) That the accused assaulted' a certain person, as alleged; and
(b) the facts and circumstances of the case showing the existence at the time of the assault of the intent of the accused to murder, as alleged.”
Lesser included offenses were mentioned but not defined.
The law officer committed prejudicial error by not giving the court the elements of murder. United States v. Banks (No. 382), 4 CMR 71, decided July 24, 1952; United States v. Avery (No. 809), 4 CMR 125, decided August 6, 1952. In addition, the evidence fairly raised the issue of an assault with intent to commit voluntary manslaughter, and the elements of this lesser offense should have been given to the court. The decision of the board of review is reversed and. the case is remanded to The Judge Advocate General of the Army for rehearing or other action not inconsistent with this opinion.
