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1957 JAG J. 15 (1957-1958)
Manslaughter and Negligent Homicide

handle is hein.journals/naval1957 and id is 33 raw text is: MANSLAUGHTER AND NEGLIGENT HOMICIDE ENSIGN THOMAS L. STEVENS, USNR T HE KILLING OF A HUMAN BEING is a tragic occurrence for which society imposes sanctions of varying degree. Not all homicides are criminal offenses. The Manual for Courts- Martial, as does society, recognizes that death may result by accident through no fault of the actor. At the opposite extreme one immedi- ately recognizes wilful murder through a pre- meditated design to kill or inflict grievous bodily harm.' It is the conduct resulting in death be- tween these extremes of accident and murder to- which this article addresses itself. VOLUNTARY MANSLAUGHTER Manslaughter is of twc types: voluntary and involuntary. As to the first of these, voluntary manslaughter, the Uniform-Code of Military Justice sets out a five-point definition. Any per- son subject to the Code who, (1) with an intent to kill or inflict great bodily harm, (2) unlaw- fully kills a human being, (3) in the heat of sud- den passion, (4) caused (5) by adequate provo- cation, is guilty of voluntary manslaughter.' It should be noted that the first element of the homicide described under Article 119a is an in- tentional killing. The actor fully intended to take human life and his every thought and ges- ture was to effect this result. However, the theory of the law is that the passion aroused in the accused dethroned his reason and prevented formation of a deliberate purpose; the theory being that malice and passion of this degree can- not coexist in the mind at the same time' Be- cause of these circumstances the Code, consist- ent with the prevailing weight of authority, does not consider this act as a murder. However, neither is such an act excused since the maxi- mum punishment for voluntary manslaughter is a dishonorable discharge, 10 year's confine- ment at hard labor, forfeiture of all pay and al- lowances, and reduction to the lowest pay grade.4 1. Murder would also be committed if a person is killed while the accused is engaged in an act which Is inherently dangerous to others and evinces a wanton disregard of human life, or while he is engaged in the perpetration or attempted perpetration of bur- glary, sodomy, rape, robbery, or aggravated arson. Art. 118. UCMJ. 2. Art. 119. UCMJ. 3. I Wharton Criminal Law,. § 426 (1932). 4. Par. 127c. MCM, 1951. A second element requires that the killing of a human being result from the act committed. This element can be described as actual causa- tion. Did the actor cause the death or was it caused by other circumstances? There can be no manslaughter if there is no killing or if the killing was not caused by the acts of the accused. It is the homicide which is the harm society seeks to avoid. Embodied within the last three elements is the rationale prompting the reduction of this type of homicide from murder to manslaughter. The law recognizes that under certain provocation a man may become so incensed as to lose control of himself and strike a fatal blow. One who commits a homicide while provoked to passion beyond a reasonable degree is not so offensive to society's standards as the cool-headed, schem- ing murderer. This premise is accepted with facility, but its application to the facts of vari- ous cases requires precise legal thinking. How is it determined that the accused was impas- sioned as a result of reasonable provocation? As to this question, the passion of the actor must be real. Even though there is legally recognized adequate provocation to incite pas- sion in any reasonable man, if the accused is not, in fact, in the heat of sudden passion, but is act- ing with emotional control, any homicide result- ing would be a murder.3 Passion in its legal sense must render reason overthrown and leave the accused incapable of cool reflection.6 Clearly a subjective view of the accused's state of mind is taken. Consideration of whether an accused should have been impassioned questions whether a subjective analysis should still be employed to determine what provocation is adequate. A quick-tempered neurotic (not insane) wrong- doer may be easily provoked into a state of sudden passion; yet this type person is not per- mitted to kill with greater impunity than the most unemotional, impassive person. In this area criminal law adopts the objective standard of the reasonable man to determine the legal adequacy of provocation. Not every act of provocation is sufficient to downgrade a homi- cide from murder to manslaughter. There must be such provocation as would excite uncontrol- 5. U. S. v. Black 3 USCMA 57.11 CMR 57. 6. CM 370268, Haersham. 14 rMR 428. FEBRUARY 1957

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