insanity." U.S. v. Riege, 5 MJ 938 (NCMR 1978). A person is presumed to be sane. The accused must
establish by clear and convincing evidence that he or she was not mentally responsible at the time of the
offense RCM 916(k) (3) (A).
C. Accident. "A death, injury, or other event which occurs as the unintentional and unexpected
result of doing a lawful act in a lawful manner is an accident and excusable." This does not apply if the
accused acted unlawfully or negligently. (RCM 916(f).)
QUESTION: IN ONE CASE, THE ACCUSED DECIDED TO LEAVE HIS ON-POST QUARTERS
TO LOOK FOR HIS BROTHER, BELIEVED TO BE AT A LOCAL BAR. HE TOLD HIS WIFE TO
GET HIS PISTOL, AS HE WAS GOING TO TAKE IT WITH HIM. SHE GAVE HIM THE PISTOL
BUT ASKED THAT HE RECONSIDER GOING OUT. "THE ACCUSED THEN SAID THAT HE
BETTER NOT GO BECAUSE IF SOMEONE MESSES WITH HIM HE "WOULD DO THIS." AT
THAT TIME HE RAISED HIS HAND IN THE AIR, CHECKED TO SEE IF THERE WAS A CLIP IN
THE GUN, AND "LOWERED MY HAND TOWARD HER." AT THAT TIME THE GUN FIRED,
STRIKING HIS WIFE IN THE HEAD. EXPERT TESTIMONY SHOWED THE PISTOL WAS NO
MORE THAN NINE INCHES FROM HER HEAD WHEN IT FIRED." IS HE NOT GUILTY
BECAUSE OF ACCIDENT?
ANSWER: NO. HE IS GUILTY OF MURDER BY CULPABLE NEGLIGENCE. AN ACCIDENT
"IS AN UNEXPECTED ACT NOT DUE TO NEGLIGENCE...TO BE EXCUSABLE AS AN
ACCIDENT, THE ACT MUST HAVE BEEN THE RESULT OF DOING A LAWFUL ACT IN A
LAWFUL MANNER, FREE OF NEGLIGENCE." HERE, HIS CONDUCT "CLEARLY
CONSTITUTES NEGLIGENCE," SO THERE WAS NO DEFENSE. U.S. V. RODRIGUES, 8 MJ
648 (AFCMR 1979).
An accident involves three elements. First, the accused must have been engaged "in an act
not prohibited by law, regulation, or order." Second, this act must "have been performed in a lawful
manner; i.e., with due care and without simple negligence." Finally, the act must be done "without any
unlawful intent." U.S. v. Ferguson, 15 MJ 12 (CMA 1983).
QUESTION: THE ACCUSED PULLS A KNIFE AND "CAME AT HIM IN A PLAYFUL MANNER
WITH THE OPEN KNIFE." THE VICTIM IS "ACCIDENTALLY" STABBED. IS THIS A
DEFENSE?
ANSWER: NO. AN INJURY OCCURRING AS A RESULT OF SUCH HORSEPLAY IS NO
DEFENSE. "BRANDISHING AN OPEN KNIFE IN THE DIRECTION OF ANOTHER AT CLOSE
QUARTERS IS A NEGLIGENT ACT ACCOMPANIED BY A CULPABLE DISREGARD FOR THE
FORESEEABLE CONSEQUENCES," DESPITE THE ACCUSED'S LACK OF INTENT TO HURT
THE VICTIM. UNINTENTIONAL DOES NOT EQUAL ACCIDENT, WHERE THE ACCUSED IS
ACTING IN A NEGLIGENT MANNER. U.S. V. LEACH, 22 MJ 738 (NMCMR 1986). FOR THE
DEFENSE OF ACCIDENT TO APPLY, THE ACCUSED MUST ACT WITH "REASONABLE CARE
AND DUE REGARD FOR THE LIVES OF OTHERS." U.S. V. LETT, 9 MJ 602 (AFCMR 1980).
D. Impossibility/inability. It is a defense to refuse or fail to perform a duty that the accused was,
through no fault of the accused, not physically or financially able to perform the duty. RCM 916(i). It
is not a defense, however, if the inability occurred "through the accused's own fault or design."
QUESTION: THE ACCUSED HAS BEEN ORDERED TO GET A HAIRCUT. HE SPENDS HIS
MONEY ON A NEW STEREO AND NOW CANNOT AFFORD THE HAIRCUT. IS THIS A
DEFENSE?
MP1019
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