the probable consequences of his conduct.
It is highly probable that someone would be struck and
killed by the vehicle.
In order to convict the accused of wanton murder, the accused must know that death or grievous bodily
harm was a probable consequence of his inherently dangerous act. This knowledge may be proven from
circumstantial evidence. Part IV, MCM 1984, Para 43(c) (4) (b). There are a variety of acts which can
be considered inherently dangerous. These are acts which by their very nature are likely to result in
grievous bodily harm or death. In the case of United States v. Judd, 27 CMR 187 (CMA, 1958), the
court of military appeals concluded that a reasonable person could find a wanton and utter disregard for
life where the accused holds a loaded weapon toward his wife and child, plays with the weapon by
spinning the cylinder and moving the hammer back and forth, and kills his wife when the weapon
discharges.
Another example is United States v. McMonagle, 38 MJ 53 (CMA 1993). In that case the accused
started a sham firefight during the invasion of Panama to cover up the loss of his pistol in an off-limits
bar. The court found that indiscriminately firing a weapon in an inhabited area during a sham firefight is
legally sufficient to support finding of guilt for murder while engaged in act inherently dangerous to
another.
4. Felony Murder (Article 118(4), UCMJ). The final category of murder defined by Article
118, UCMJ, is felony murder. Society has always recognized that certain crimes are so dangerous that
they are likely to result in the death of the victim or another. If someone is killed during the perpetration
or attempted perpetration of certain offense, then the perpetrator should be held criminally liable for
murder. In the military, Article 118(4) punishes those unlawful killings the accused commits while
engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated
For example, PVT Jones uses a knife to attempt to rob SPC Smith. SPC Smith resists and
struggles. During the struggle, SPC Smith is killed by PVT Jones' knife. PVT Jones is guilty of felony
murder committed in the course of a robbery. This is true even if, before the robbery, PVT Jones had
made a conscious decision that he would not harm anyone. All that must be established is that the death
was caused by the felony. United States v. Borner, 12 CMR 62 (CMA 1953). Therefore, using our
example, even if Jones would have been willing to let the whole thing drop at the first sign of resistance
and the fatal struggle was the result of Smith's grabbing at Jones' hand, Jones is guilty of felony murder.
In another example Jones points his knife at Smith and demands his money. As a result, Smith dies on
the spot of a heart attack. Jones could be found guilty of felony murder. When someone is killed by the
perpetrator of one of these named offenses, it is not a defense that the killing was unintended or
accidental. Part IV, MCM 1984, para 43(c) (5) (a).
Criminal responsibility for felony murder is not restricted to the actual perpetrator of the killing.
The facts in Borner involved three individuals who were convicted of rape and felony murder because
one of them
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