concerning its elements.

(Citing U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107; U. S. v. Roman (No. 191), 1 USCMA 244, 2 CMR 150; U. S. v. Burr (No. 1215), 2 USCMA 182, 7 CMR 58; U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45.)

- the law officer's instructions adequately, if unartfully, comprehended the lesser offense, even though they did not refer to the offense in the precise terms of the Code or the Manual and its elements were not specified in one particular portion of the instructions.

the instructions are not objectionable as permitting conviction of the accused following a finding of intent only to inflict grievous bodily harm, since the law officer's instructions made it clear that, to convict of the offense charged, the court was obliged to find that the accused acted with a purpose to kill. Furthermore, the defense counsel took no exception to the instructions as given, and made no request for clarification or elaboration (see U. S. v. Soukup (No. 533), 2 USCMA 141, 7 CMR 17; U. S. v. Offley (No. 1841), 3 USCMA 276, 12 CMR 32.) United States v. Malone (No. 4158), ↳ USCMA 471, 16 CMR 45.

The accused was convicted of murder. The evidence showed that the victim had been apprehended by a sentry trespassing in a bomb dump and had been taken to the Air Police Operations Office, where the accused, the Air Police Officer, ordered the sentry to take the victim back to the bomb dump and shoot him, which the sentry did. Held: Under the circumstances of this case, the lesser offenses of aggravated assault were not reasonable alternatives to the offense charged, since the victim met his death by reason of the gunshot wound and since the act of the person who fired the shot was in law the act of the accused, the accused could hardly have been guilty of assault. Accordingly, the law officer was under no duty to instruct on aggravated assault. (Citing U. S. v. Dejewski (No. 2055), 3 USCMA 53, 11 CMR 53; U. S. v. Davis (No. 646), 2 USCMA 505, 10 CMR 3; U. S. v. Lee (No. 819), 3 USCMA 501, 13 CMR 57; U. S. v. Craig (No. 1249), 2 USCMA 650, 10 CMR 148.) ACM 7761, Schreiber (1954) 16 CMR 639.

The accused was found guilty of assault with intent to commit murder. According to the alleged victim's testimony, the accused approached him and said “I kill, I kill." He then ordered the victim to enter a certain building and inside he repeated his threat to kill. The victim turned and ran and as he reached the door the accused shot him. In his own testimony, the accused said that the victim asked him into the building and when they had entered, he questioned the victim as to why he had killed a certain girl. The girl was just a friend of the accused. Suddenly the victim struck at him with a chair, and, with the second swing, hit him in the shoulder. The victim ran toward the door and the accused shot him. No instructions on the offense of assault with intent to commit voluntary manslaughter were given. Held: The evidence was insufficient to reasonably raise the lesser included offense of assault with intent to commit voluntary manslaughter and, according

ly, it was not error to fail to instruct on that offense. Voluntary manslaughter is a homicide committed in the heat of sudden passion caused by adequate provocation. No such provocation is shown by the evidence in this case. The accused was not threatened in any way. On the contrary, whatever threats there were emanated from him. He was the only one who was armed. The girl who was the subject of the conversation was just a friend and the incident which appears to have resulted in her death was clearly past. Giving maximum credit to the accused's testimony, it only appears that he fell off the chair in which he was sitting when the victim struck at him and hit in the shoulder. It is quite apparent that the blow which the victim struck, if in fact it was delivered, was so slight as to give the accused no cause for alarm. Under such circumstances a reasonable person would not have become so emotionally excited as to shoot to kill. (Citing U. S. v. Short (No. 3586), 4 USCMA 437, 16 CMR 11; U. S. v. Lee (No. 4764), 4 USCMA 571, 16 CMR 145.) United States v. Gravitt (No. 4889), 5 USCMA 249, 17 CMR 249, affirming ACM 8012, Gravitt, 15 CMR 674.

The accused was convicted of unpremeditated murder. The evidence showed that after several hours of drinking together, an argument developed between the accused and his victim. The accused was seen to strike the victim several times on the head with a stick. The victim died a short time thereafter as a result of a brain hemorrhage. The accused testified that he struck the victim but had only meant to strike him on the shoulder and had not wished to injure, much less to kill him. This same version was recorded by the accused in the course of a pretrial statement introduced in evidence. No testimonial estimate of the thickness of the stick used by the accused exceeded one and one half inches and medical evidence revealed the victim's skull to have been remarkably thin and that the fatal result of the use of the stick may well have been attributable to the unusually delicate nature of the victim's skull. The law officer gave no instructions on the lesser included offense of involuntary manslaughter. Held: The victim's physical condition can exercise no effect on the accused's amenability to criminal law. However, bodily insufficiency may throw light on the question of whether an intent to kill or inflict great bodily harm existed, or whether, on the other hand, the death amounted to no more than an accident unanticipated by the actor. Thus, it may possess relevance to a determination of the particular homicide offense for which the accused is answerable. When this is considered with the other evidence, the offense of involuntary manslaughter was reasonably raised and instructions thereon should have been given. [Latimer, J., concurring states that the underlying physical condition of a victim is not involved in determining whether the offense committed was murder or involuntary manslaughter since the victim's physical condition is no defense to an accused charged with murder. However, the other evidence reasonably raised the issue of involuntary manslaughter. (Citing 26 Am Jur, Homicide, §§ 48, 52; 40 CJS, Homicide, § 11; State v. Smith, 73 Iowa 32, 34 NW 587, 601; Nelson v. State, 58 Ga App 243, 198 SE 305, 308 and other

cases.)] United States v. Robertson (No. 5441), 5 USCMA 806, 19 CMR 102.

The accused was convicted of assault with intent to commit murder. The evidence showed that the accused was sleeping on the victim's bed when the latter returned and the accused was tipped onto the floor. He scrambled to his feet and started toward another man but was blocked by the victim and another occupant of the tent. He was then taken to the door by the victim, who directed him to proceed to his own sleeping quarters. A few minutes later a shot ripped through the tent. A sergeant went out to investigate and saw a person about fifty yards away with a rifle in his hand. He asked who fired the shot and the accused answered back, stating his name and that he was firing at the victim and shooting to kill. The sergeant went up to the accused and disarmed him and examined the weapon and noted that it had been fired recently. The witnesses were consistent in their testimony that the accused had been drinking, but all averred that he was not drunk. The accused made a pretrial statement in which he stated he had been drinking and admitted firing the shot through the tent. In his instructions, the law officer did not instruct on the lesser included offense of assault with a dangerous weapon. However, at the request of the defense counsel, he instructed on wrongfully and willfully discharging a firearm under such circumstances as to endanger human life. Held: The evidence was insufficient to place the lesser included offense of assault with a dangerous weapon in issue and accordingly the law officer was not required to instruct thereon. While there was some evidence that the accused had been drinking, there was no evidence of a sufficient degree of intoxication to permit reduction of an offense to one of a lesser sort. In fact, the accused's ability to regain his feet after he had been tipped on the floor, his ability to handle and aim a rifle, and his ability to recall the events with sufficient clarity to relate them in detail and reduce his recollections to a coherent statement, all indicate that he was not drunk. Also, the accused's statement to the sergeant that he was shooting to kill indicates an intent to kill. (Citing U. S. v. Backley (No. 1588), 2 USCMA 496, 9 CMR 126.) Furthermore, under the circumstances of this case the tactics of the defense counsel indicate that he did not want the lesser included offense of assault with a dangerous weapon submitted to the court. The defense counsel prepared and furnished an instruction on the lesser included offense of willfully and wrongfully discharging a firearm under circumstances dangerous to human lives. At the time that instruction was given, counsel was fully apprised of the fact that an instruction on assault with a dangerous weapon had not been given. Under such circumstances, it appears that the defense counsel knowingly gambled on leaving the more serious included offense unmentioned to center the court's attention on the less serious included offense upon which he requested instructions. [Brosman, J. dissenting.] United States v. Jackson (No. 4957), 5 USCMA 584, 18 CMR 208.

Sufficiency of evidence on trial for premeditated murder to raise

issue of aggravated assault so as to require instructions on such lesser offense, see United States v. Schreiber, infra § 119.1.

Approval of lesser offense of assault with a dangerous weapon where court was erroneously instructed that assault with intent to inflict grievous bodily harm was lesser offense of assault with intent to commit murder, see ACM 4715R, Burns (reh), ASSAULT § 25.1.

Evidence as not requiring instructions on voluntary manslaughter as lesser offense of premeditated murder, see United States v. Lee, DEFENSES § 35.9.

§ 82.15. Defenses, generally.

The evidence at a trial for premeditated murder was held insufficient to raise an issue requiring an instruction on the effect of intoxication on the accused's ability to premeditate where intoxication was mentioned for the first time in the testimony of the accused, who, after describing a day devoted to drinking intoxicants, was asked by his counsel if he was very drunk and he replied "Yes, I imagine I was", no prosecution witness referred to the accused's condition during the course of direct examination, the defense counsel did not allude to this condition in his cross-examination of adverse witnesses, nor did he seek to elicit any information on the subject from defense witnesses, although one of them had spent a considerable part of the day with the accused, the accused's recollection of events leading up to the point where he became angered with his victim showed an ability to think clearly and the evidence of what occurred after he became angered indicated an ability to take planned and purposeful action. A bare showing that the accused had been drinking, or a mere claim that he was intoxicated, without evidence that his conduct was in any way affected, is insufficient to raise the condition to the level of an affirmative defense so as to require instructions thereon. (Citing U. S. v. Backley (No. 1588), 2 USCMA 496, 9 CMR 126; U. S. v. Benavides (No. 876), 2 USCMA 226, 8 CMR 26; U. S. v. Jackson (No. 4957), 5 USCMA 584, 18 CMR 208.) United States v. Smith (No. 5956), 6 USCMA 13, 19 CMR 139.

§ 82.17. Self-defense.

The evidence at the trial of the accused showed that one H. had accused him of cheating in a card game and threatened to kill him. The accused retired to his own tent where he obtained and loaded his rifle. Shortly thereafter H. entered. The accused approached him, pushed him in the chest with his rifle and forced him back. As they moved back toward the entrance of the tent, H. suddenly grabbed a rifle and some ammunition and loaded the rifle and pointed it in the general direction of the accused. The accused then fired his rifle twice killing H. and another. In his argument the trial counsel stated that a person may be excused for a killing if that killing is necessary to save his own life but that the law does not permit taking of another person's life until the person who did the killing had retreated as far as he could safely retreat unless he was in his own home. In this connection he defined a home as a dwelling, a

place with walls and ceiling and furniture and a roof. He stated it did not include a tent in which a person lived one week and lived somewhere else the next week. Accordingly, he argued the accused had no right to kill because he was in a tent. The defense counsel interposed a conditional objection to the definition of a home as given by the trial counsel. The condition was that the law officer provide a legal definition. The law officer overruled the objection. Later he instructed extensively on the law of self-defense including the necessity for retreat. In this connection he substantially adopted the definition of a home as stated by the trial counsel. He stated that the term "house" meant presumptively a dwelling house and the word "own" meant belonging to oneself.

Held that:

a dwelling house is not a mere physical structure of a particular kind. It is a place in which human beings live. It may be a hotel room, an apartment, an entire building, as in the case of a single family residence or a tent. Generally a military person's place of abode is the place where he bunks and keeps his private possessions. His home is the particular place where the necessities of the service force him to live. This may be a barracks, a tent, or even a fox hole. Whatever the name of his place of abode, it is his sanctuary against unlawful intrusion and he is entitled to stand his ground against a trespasser to the same extent that a civilian is entitled to stand fast in his civilian home. Consequently, when the accused retired to his own tent he retreated as far as the law demands. The law officer erred in failing to make that clear to the members of the court. (Citing State v. Holbrook, 98 Ore 43, 188 P 947; cf. U. S. v. Love (No. 3663), 4 USCMA 260, 15 CMR 260.)

- the law officer's error was emphasized by the stress he laid on the requirement of exclusive title. The court members would certainly not regard military sleeping quarters as "belonging to" an accused. It would inevitably conclude that a tent belonged to the government rather than to a particular person in the service. The law of self-defense is not applicable only to one who can show a title deed to his dwelling. A person may protect himself against the force and violence of a trespasser whether or not he owns the title to his place of abode. The test is not legal ownership, but the right to peaceful possession.

-the basis of self-defense is necessity. The necessity depends upon the facts and circumstances presented by the evidence, of which the possibility of retreat is only a part. The factual situation may indicate that the accused was foreclosed from retreating. In such a case, the accused's right to self-defense is not lost because he does not pause to consider ways of escaping imminent danger. In the instant case there is substantial evidence from which the triers of fact could conclude that the danger to the accused was so great and so imminent as to justify his standing his ground. Moreover, he was in his own home and he had no obligation to retreat before defending himself. However, the law officer did not define the accused's right to stand his ground. Instead, his instructions plainly left the court with the erroneous impression