1 C.M.A. 602 | United States Court of Military Appeals | 1952
Opinion of the Court
This accused stands convicted by general court-martial of an assault with a dangerous weapon in which grievous bodily harm is intentionally inflicted in violation of Article 128b of the Uniform Code of Military Justice, 50 USC § 722. The sentence extends to dishonorable discharge, total forfeiture of pay, and confinement at hard labor for two years.
The law officer, in instructing the court on the elements of the offense, gave the items of proof required for a conviction of assault with a dangerous weapon in violation of Article 128b of the Code, supra, omitting the element that the bodily harm was intentionally inflicted. This element is the vital distinguishing factor between the two forms of aggravated assault, and this accused was convicted of the more serious form on instructions embodying only the elements of the lesser form. This was prejudicial error in this case. United States v. Cromartie (No. 374), 1 USCMA 551, 4 CMR 143, decided August 6, 1952.
We have examined the other allegations of error and find them to be without merit. The petition is granted, the decision of the board of review is reversed, and the ease is remanded to The Judge Advocate General of the Army for referral to a board of review for reconsideration of their approval of the findings and sentence.
