Battery without Assault
![handle is hein.journals/armylaw1991 and id is 708 raw text is: Battery Without Assault
Major Eugene K Milhizer
Criminal Law Division, OTJAG
Introduction
Inspired by a recent David Letterman Show, Pri-
vate A tosses a glass punchbowl off of his fourth-
floor balcony. Private A does not intend to strike
anyone; he only wants to hear what kind of sound
the punchbowl will make when it crashes on the
sidewalk. Although Private A knows that the area
below is travelled heavily, he does not look to see if
anyone is beneath him before throwing the
punchbowl. Enroute to the sidewalk, the punchbowl
strikes Colonel B on the head. Colonel B never sees
the punchbowl. Indeed, upon regaining conscious-
ness, Colonel B has no clue as to the source of the
bump on his head or his terrible headache.
On these facts, could a military court convict Private A
under the Uniform Code of Military Justice (UCMJ)1 for
a battery upon Colonel B? A plain reading of the perti-
nent article of the UCMJ-article 128-indicates that, as
a matter of law, Private A is not guilty of battery under
these circumstances. On the other hand, the relevant para-
graph of the 1984 Manual for Courts-Martial2-Part IV,
paragraph 54b(2)-as well as several court decisions sug-
gest that Private A actually could be convicted of this
offense.
As the above discussion reflects, military law is ambig-
uous on whether the crime of battery requires that the
accused actually commit an: assault. The law does not
state decisively that all batteries must be consummated
assaults, nor does it state that an accused actually can
commit a battery under the UCMJ without also assaulting
the victim by either offer or attempt.3 -
Simple Unconsummated Assault
A brief review of military law pertaining to unconsum-
mated assaults may help to clarify the scope and meaning
of battery.
Article 128, UCMJ, defines assault as follows:
(a) Any person subject to this chapter who
attempts or offers with unlawful force or violence
to do bodily harm to another person, whether or not
the attempt oroffer is consummated, is guilty of
assault ......
(b) Any person subject to this chapter who ...
commits an assault with a dangerous weapon or
other, means or force likely to produce death or
grievous bodily harm; or. . commits an assault and
intentionally inflicts grievous bodily harm with or
without'a weapon ... is guilty of aggravated
assault .... 4
Subparagraph (a) of article 128 thus expressly provides
for two distinct forms of simple, unconsummated
assault-assault by offer and assault by attempt.5 Sub-
paragraph (b) further provides that a simple assault may
be aggravated depending upon the instrumentality used-
for example, a dangerous weapon or other means likely to
produce death or grievous bodily harm-or the accused's
intent to inflict grievous bodily harm. By the express
terms of the statute, every aggravated assault must be
predicated upon at least one form of simple assault.6
Assault by offer occurs when the victim reasonably
apprehends that he or she is at risk of immediate bodily
110 U.S.C. §§ 801-940'(1988) [hereinafter UCMJ].
2Manual for Courts-Martial, United States, 1984 [hereinafter MCM, 1984].
3See generally Note, The Scope of Assault, The Army Lawyer, Apr. 1990, at 67, 68 n.69 (the author raises questions about the scope of battery but
defers judgment on them).
4MCM, 1984, Part IV, pars. 54a. Military law further categorizes and punishes assaults based upon the status of victim. E.g., id., Part IV, pars. 54b(3)
(assault upon a commissioned, warrant, noncommissioned, or petty officer, assault upon a sentinel, lookout, or law enforcement person in execution of
duties; assault consummated by a battery upon a child under 16 years); UCMI art. 90 (assault upon a superior commissioned officer in the execution of
office); UCMJ art. 91 (assault upon a warrant, noncommissioned, or petty officer while in execution of office). Other types of assault, requiring special
types of specific intent, are proscribed by UCMJ art. :134. E.g., MCM, 1984, Part IV, pars. 63 (indecent assault); id., Part IV, pars. 64 (assault with
intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or housebreaking). For a discussion of some of the aggra-
vated assaults requiring special types of specific intent, see Note, Mistake of Fact and Sex Offenses, The Army Lawyer, Apr. 1990, at 65.
5Traditionally, assault was defined as an attempt to commit a battery. 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.16 (1986); 2 Wharton's
Criminal Law § 179 (C. Torcia 14th ed. 1979). Most civilian jurisdictions today define assault as an attempt or offer to commit a battery. 2 LaFave &
Scott, supra, at § 7.16; R. Perkins & R. Boyce, Criminal Law 151 (3d ed. 1982).
6See MCM, 1984, Part IV, para. 54b(4)(a)(i) (pertinent element for aggravated assault by dangerous weapon or other means or force likely to produce
death or grievous bodily harm); id., Part IV, para. 54(b)(4)(b)(i) (pertinent element for aggravated assault by the intentional infliction of grievous
bodily harm).
OCTOBER 1991 THE ARMY LAWYER a DA PAM 27-50-226](ViewImageLocal?handle=hein.journals/armylaw1991&div=58&collection=&method=preview&ext=.png&size=3)
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