that the accused's tent was not his home, and that it had to find the accused affirmatively retreated before it could return a not guilty verdict. The law officer, therefore, failed to provide proper guideposts on the law of self-defense. (Citing Brown v. U. S., 256 US 335, 65 L ed 961, 41 S Ct 501, 18 ALR 1276; U. S. v. Troglin (No. 1960), 3 USCMA 385, 12 CMR 141; People v. Turner, 385 Ill 344, 52 NE2d 712; U. S. v. Weems (No. 2072), 3 USCMA 469, 13 CMR 25.)

under the circumstances, the defense's failure to object to the instructions did not constitute a waiver. The defense counsel had affirmatively objected to the trial counsel's definition of a dwelling. He also specifically requested the law officer to instruct the court properly on the subject. However, the law officer not only overruled his objection but in his instructions expressly adopted the same erroneous definition. Under these circumstances, the defense counsel was not required to again object. (See U. S. v. Landrum (No. 4478), 4 USCMA 707, 714, 16 CMR 281; U. S. v. Lowry (No. 3888), 4 USCMA 448, 453, 16 CMR 22.) United States v. Adams (No. 5300), 5 USCMA 563, 18 CMR 187.

[See 26 Am Jur, Homicide $$ 155, 156.]

The accused was convicted of murder but the board of review affirmed only findings of guilty of voluntary manslaughter. The principal defense was self-defense. A majority of the board of review stated that they were "not at all certain" that the law officer's instructions on the accused's defense of self-defense did not prejudice the accused. However, they concluded that any prejudice was cured by the board's findings reducing the offense from murder to voluntary manslaughter. Held: Self-defense is a defense to every degree of homicide. Consequently, if the law officer materially misinstructed the court on the law relating to self-defense, he deprived the accused of the right to complete exoneration and mere reduction in the degree of the offense would not cure the error. (No. 2072), 3 USCMA 469, 13 CMR 25.) (No. 5300), 5 USCMA 563, 18 CMR 187.

(Citing U. S. v. Weems United States v. Adams

§ 82.31. Causal connection between act and death; intervening

causes.

The accused was found guilty of negligent homicide. The evidence showed that his automobile struck and killed a boy. At the time of the accident, the accused was operating his automobile at a speed in excess of the speed limit and the testimony of prosecution witnesses was to the effect that at the time of the impact the accused was driving on the wrong side of the street. The accused's version was that the boy darted in front of his car and that he swerved in an attempt to avoid striking him but the attempt was unsuccessful. The defense counsel argued that even if the accused was negligent, the sole cause of the accident was the act of the victim and he requested instructions on the causation issue to the effect that if the court believed that the death of the victim was caused by his own act or omission, or, if it had reasonable doubt as to the proximate cause of death, then it could not find the accused

guilty. He also requested instructions to the effect that in order to constitute the offense of negligent homicide it must be proved beyond a reasonable doubt that the killing was the natural and probable or necessary consequence of the commission of an unlawful act and the direct and immediate result thereof. The law officer ignored these requests and he instructed on the causation question merely that the court must find that the victim's death "was unlawfully caused by a negligent act or omission of the accused." Held: Although the requested instructions may not have been technically correct, they were sufficiently challenging in content to require the law officer to elaborate on the issue of proximate cause, an issue which was clearly raised by the evidence. (Citing U. S. v. Phillips (No. 1244), 3 USCMA 137, 11 CMR 137; U. S. v. Burden (No. 1038), 2 USCMA 547, 10 CMR 45; U. S. v. Sandoval (No. 3001), 4 USCMA 61, 68, 15 CMR 61, 68 (concurring opinion); cf. U. S. v. Short (No. 3586), 4 USCMA 437, 16 CMR 11.) The court might have acquitted the accused if an instruction had been given to the effect that it could not convict unless it found that a reasonably prudent man under the circumstances would reasonably have foreseen that injury to the victim might probably result from the accused's negligence (see 65 CJS, Negligence, § 109). The instructions given did not convey such information to the court. Hence, it was prejudicial error for the law officer not to explain fully the causation issue. (Citing U. S. v. Phillips, supra; U. S. v. Burden, supra. Distinguishing U. S. v. Russell (No 2652), 3 USCMA 696, 14 CMR 114). CM 374089, Hill (1954) 17 CMR 385.

[See 26 Am Jur, Homicide § 533; 38 Am Jur, Negligence §§ 366368.]

B. EVIDENCE

2. WEIGHT AND SUFFICIENCY; PRESUMPTIONS

§ 107.1. Generally.

AND INFERENCES

§ 107. Murder

On a trial for murder, the evidence showed that the victim was apprehended by a sentry while trespassing on the bomb dump and was taken to the Air Police Operations Office where the accused ordered the sentry to take the victim back to the bomb dump and shoot him. The victim had been subdued and was not offering any resistance after he had been brought to the air police office. He was not attempting to escape or commit any other offense, nor was he acting in a manner such as to give reasonable apprehension that he was dangerous. Held: The unlawfulness of the shooting is not open to question. Although the evidence does not definitely establish whether the victim was an enemy, a saboteur, a Fifth columnist, a criminal, or merely a trespasser, irrespective of his status there was no warrant under law, either local or international, federal or military, to take his life under the circumstances shown herein. (See ACM 7321, Kinder, 14 CMR 742.) ACM 7761, Schreiber (1954) 16 CMR 639.

§ 113. Intent; Malice; Motive; Premeditation

§ 113.1. Generally.

The evidence on a trial for premeditated murder showed that the victim had been apprehended by a sentry while trespassing on a bomb dump and was taken to the Air Police Operations Office. The sentry testified that he heard the accused, who was Air Police Officer, and the sergeant of the guard discussing what to do with the victim. Following this, the accused came to him and asked if he could take the victim out and shoot him. When he indicated he could not, the accused told him it was an order. Several other persons testified as to hearing conversations between the accused, the sergeant and the sentry, the substance of which was that the victim was to be taken out and shot. Held: The element of premeditation is sufficiently established if the evidence is otherwise sufficient to establish the accused's participation in the offense. Although the accused denied giving an order that the victim be shot, the facts and circumstances surrounding the commission of the offense, together with activities of the accused subsequent to the incident, indicating an attempt to cover it up, compel a conclusion that the accused did participate in the offense. ACM 7761, Schreiber (1954) 16 CMR 639.

The accused was charged with premeditated murder of a military police officer. He was shown to have had an argument with two service policemen in which he threatened to "get" or to "kill" some military policemen. Almost immediately thereafter he stole a carbine and obtained ammunition for it. He then procured a vehicle, drove off the base without stopping at the guard gate and proceeded to a village. Shortly after his arrival, he shot a civilian. A few minutes later he was informed that there were military or civilian police in the area. He then saw and was seen by a civilian policeman. In his own testimony, he denied seeing the military police officer who was in the company of this civilian policeman. But, according to a prosecution witness, the officer was about three feet in front of him. The accused got out of his vehicle and moved toward them. He then fired shots which killed the military police officer. In his instructions on premeditation, the law officer stated that premeditated murder is committed after the formation of a specific intent to kill someone and consideration of the act intended. Held: In the above sequence of events there is no element of sudden surprise or impulsive reaction. Instead, there is a definite interval between the time the accused admits he saw the civilian policeman and the time he fired. On this evidence, the court could legally find that the homicide was premeditated. (Citing U. S. v. Ransom (No. 4107), 4 USCMA 195, 15 CMR 195; cf. Bullock v. U. S., 122 F2d 213.)

Held also: The law officer's use of the indefinite word "someone" could not have misled the court into believing it could find the accused guilty under the doctrine of transferred intent which was not applicable in the instant case. The circumstances surrounding the shooting of the military police officer show a premeditated

design to kill him. The accused had threatened to "kill" or "get" some air policeman or military policeman. However, this threat related to a class of persons and the victim was a member of that class. Consequently, if the court considered the threat as evidence of premeditation, it must have regarded it as relating directly to the person actually killed. On that basis, the court could not logically have concluded that it need not find a specific intent to kill the person who was killed. (Cf. CM 358820, Galan, 9 CMR 322.) United States v. Gravitt (No. 4889), 5 USCMA 249, 17 CMR 249, affirming ACM 8012, Gravitt, 15 CMR 674.

§ 119.1. Generally.

§ 119. Cause or Time of Death

The accused was convicted of conspiracy to murder and premeditated murder. One K. apprehended a Korean prowler. While he and T. were taking the man to the Operations office, T. pistol whipped him about the head. K. testified that after they arrived at the Operations office, T. and the accused had a conference after which the accused ordered him, K., to take the Korean out and shoot him. One R. also testified that the accused told him the Korean was to be taken out and shot. A short time after the men had left with the Korean, shots were heard. R. investigated and discovered the Korean had been shot. He was taken to a dispensary where he died. His body was then taken to another dispensary where it was examined by a Korean doctor who testified that the cause of death was a gunshot wound. An American medical officer testified that in the absence of an autopsy the cause of death could not be determined but he admitted that the gunshot wound caused shock, a contributing factor to death. An ambulance driver who transported the victim to the various dispensaries and finally to the morgue identified the victim as the person observed by the witnesses at the various locations. Relative to the conspiracy charge, a defense witness described K.'s remarks at about the time of the shooting. The statements indicated that although K. testified that he was ordered to shoot the Korean, his activities were not coerced. Held that:

- the evidence is sufficient to show that the shooting was causally connected with the death. The evidence established, at the very least, that the shooting contributed to the ultimate result. This is sufficient. (Citing Payne v. Commonwealth, 255 Ky 533, 75 SW2d 14; State v. Weston, 155 Ore 556, 64 P2d 536; State v. Francis, 152 SC 17, 149 SE 348; State v. BeBee, 133 Utah 939, 195 P2d 746.)

- the evidence taken as a whole established the identity of the deceased as the person first seized by K. and brought to the Operations office by T. (Citing U. S. v. Roman (No. 191), 1 USCMA 244, 2 CMR 150; U. S. v. Jarvis (No. 94), 1 USCMA 368, 3 CMR 102; U. S. v. Clark (No. 190), 1 USCMA 201, 2 CMR 107.)

the lesser included offense of aggravated assault was not reasonably raised by the testimony to the effect that it was

impossible to determine the cause of death since the evidence established that the gunshot wound was, at the very least, a contributing factor. Accordingly there was no necessity for instructions on the offense of aggravated assault. (Citing U. S. v. Roman (No. 191), 1 USCMA 244, 2 CMR 150; U. S. v. Davis (No. 646), 2 USCMA 505, 10 CMR 3; U. S. v. Lee (No. 819), 3 USCMA 501, 13 CMR 57.)

--

- the evidence was sufficient to establish the conspiracy charge. The actions of the accused, T. & K., indicate that they entered into an agreement to accomplish, by concerted action, an unlawful purpose. The remainder of the proof established beyond question the performance of an overt act to effect the object of that agreement. This satisfies the requirements of proof under UCMJ, Art 81. (Citing Morton v. U. S., 60 F2d 696, cert den 288 US 607, 77 L ed 982, 53 S Ct 401; MCM, 1951, par 160.) United States v. Schreiber (No. 5468), 5 USCMA 602, 18 CMR 226, affirming ACM 7761, Schreiber, 16 CMR 639.

§ 121.7. Victim of homicide.

§ 121. Identity

The accused was charged with premeditated murder of “an Oriental male human being who has been referred to by the name of Bang Soon Kil." All of the witnesses referred to the victim as a male person and some referred to him as a Korean. The court had before it photographs of the victim from which, together with the evidence of the locality and circumstances of the incident, it could infer that the victim was an Oriental male. Other evidence established that an Oriental male was apprehended by a sentry and taken to the Air Police Operations Office where he was first seen by the accused. The evidence was also clear that this same individual was taken to the bomb dump where he was shot by the sentry, allegedly on the orders of the accused. A photograph of the victim was identified as the same person who had been brought to the Air Police Operations Office. The ambulance driver who picked up the victim at the bomb dump and took him to the dispensary testified that he took the same person to a hospital where a death certificate was made out. The certificate referred to the corpse as Bang Soon Kil and gave the cause of death as a gunshot wound in the chest and the doctor who made out the certificate testified that he examined only one patient with a gunshot wound in the chest and that patient was a Korean by the name of Bang Soon Kil. Held: The sequence of events in point of time, the locale where they occurred, the particular injuries sustained by the victim, and the testimony that the corpse was taken directly from the dispensary to the hospital, lead unerringly to the conclusion that the person who was shot at the bomb dump was the same person referred to in the death certificate. The chain of identity is clearly established by the similarity of incidents. (Citing U. S. v. Jarvis (No. 94), 1 USCMA 368, 3 CMR 102 and cases cited therein.)

Held also: Under the circumstances, the testimony of the doctor and the medical certificate were admissible to establish that the