shot and killed a man who was trying to stop the rape. The investigators could not determine who fired
the fatal shot. The court upheld the murder convictions of each individual because each was guilty as a
principal to the rape. Therefore, they were principals to the murder as well.
In the case of United States v. Hamer, 12 MJ 898 (ACMR 1982), Hamer and his companion,
PFC Bean, agreed to rape a waitress in a restaurant in Germany. Hamer gave Bean a knife "to hold off"
the restaurant manager. After the other patrons had left, Hamer went down a stairway and grabbed the
waitress. While Hamer and the waitress were struggling, Bean killed the manager by beating him on the
head and strangling him. Hamer and Bean then proceeded to rape the waitress. Hamer was convicted of
felony murder.
On appeal Hamer argued that he should not be held liable for a murder which was committed
by someone else, as Article 118(4) restricts the felony murder rule to the actual perpetrator of the killing.
In rejecting Hamer's argument, the court relied on the Borner "principal" analysis and noted that the
criminal intent necessary for conviction is the intent to commit the underlying felony, in this case rape.
Regarding the capital punishment provision of the felony murder rule, the United States
Supreme Court has held that to impose the death penalty for felony murder, the accused must have either
killed or have had the intent to kill. Edmund v. Florida, 458US782, 102SCt3368, 73 L.ED.2D 1140
(1982). The Manual for Courts-Martial, however, only allows for the death penalty if the accused was
the actual perpetrator of the killing. Part II, MCM 1984, RCM 1004(c) (8).
E. Manslaughter (Article 119, UCMJ).
The term "manslaughter" is used to describe a number of different homicides which are not
sufficiently aggravated to be treated as murder, but are too serious to go unpunished or to be treated as
mere assaults. Manslaughter falls into two categories: Voluntary manslaughter in which there is usually
an intent to kill. Involuntary manslaughter, in which death is not an intended consequence of the
perpetrator's act.
1. Voluntary Manslaughter (Article 119(1), UCMJ). An unlawful killing, even though it is
done with an intent to kill or inflict great bodily harm, will not be murder if it is committed in the heat of
sudden passion caused by adequate provocation. Part IV, MCM 1984, Para 44(c) (1). This heat of
passion may result from fear or rage. A person may be provoked to such an extent that in the heat of
sudden passion caused by the provocation, a fatal blow is struck before self-control has returned.
Although adequate provocation does not excuse the homicide, it does reduce it from murder to voluntary
manslaughter. The provocation must be sufficient to excite uncontrollable passion in the mind of a
reasonable person. The rage must continue throughout the attack. United States v. Seeloff, 15 MJ 978
(ACMR 1983).
MP1019
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