the deceased had already snorted heroin, but he did not know that the deceased had earlier been drinking
alcoholic beverages. Nevertheless, the defendant admitted that he was culpably negligent, because it
was foreseeable that the deceased might overdose on heroin and die. Also, he admitted that the injection
of heroin was the actual cause of death. United States v. Ninkel, 13 MJ 400, 401 (CMA 1982).
One of the most common charges of involuntary manslaughter based on culpable
negligence arises when the accused drives while drunk and thereby causes the death of another. Driving
drunk is culpable negligence, more than simple negligence. The accused did not intend to kill anyone
when he drove drunk, but death to others is a foreseeable consequence of drunk driving.
Regarding omissions, it should be noted that where there is no duty to act, there can
be no negligence. Part IV, MCM 1984, para 44(c) (2) (a). Therefore, if a stranger makes no effort to
save a drowning person or allows a shelter challenged person to freeze or starve to death, no crime has
been committed, since no legal duty to assist existed.
Therefore, if a stranger makes no effort to save a drowning person or allows a shelter
challenged person to freeze or starve to death, no crime has been committed, since no legal duty to assist
The other type of involuntary manslaughter involves deaths which occur during an
offense directly affecting the person other than those offenses dealt with under our felony murder statute
(i.e., burglary, sodomy, rape, robbery, or aggravated arson). An "offense directly affecting the person"
means one affecting some particular person as rather than an offense affecting society in general.
Examples of offenses directly affecting the person include the various types of assault, battery, false
imprisonment, and voluntary engagement in an affray. Part IV, MCM 1984, para 44(c) (2) (b). In
United States v. Madison, 34 CMR 435 (CMA 1964), the accused pointed a gun in the direction of an
individual to scare him. When the hammer started to slip out from under the accused's thumb, he
"swung his arm around," and the gun fired killing his wife. In affirming the conviction for involuntary
manslaughter, the court noted that since the accused had no justification or excuse to point the gun at
anyone, the initial action of trying to scare his intended victim amounted to an assault by attempt with a
loaded weapon. Accordingly, a death resulting from the unintentional discharge of a gun used in
committing an assault by attempt is involuntary manslaughter.
Another example of death resulting during the commission of one of the stated
offenses involves assault consummated by a battery on the victim. The accused got into an argument
with the victim. The accused unlawfully pushed the victim to the floor. The victim fell to the floor
fracturing his skull on a brick fireplace hearth. He later died from this skull fracture. The accused did
not intend to kill the victim, but merely pushed him during an argument that turned into a "push and
shove match." However, since the death took place during the perpetration of an assault consummated
by a battery, the accused can be convicted of the second type of involuntary manslaughter.