United States v. Kick , 1979 CMA LEXIS 10382 ( 1979 )

Opinion of the Court

FLETCHER, Chief Judge:

The appellant was convicted by a special court-martial of negligent homicide, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge, confinement at hard labor for 6 months, and reduction to the lowest enlisted grade. The convening authority approved the findings and the sentence, except that he suspended the execution of the punitive discharge with provision for automatic remission. The United States Army Court of Military Review has affirmed.

Two issues were granted for review by this Court. The first legal question to be decided is whether homicide through simple negligence is an offense under the Code. The second inquiry is whether the military judge erred to the substantial prejudice of the appellant by failing to give a limiting instruction sua sponte in this case to the court members regarding evidence of uncharged misconduct. The former is answered in the affirmative; the latter in the negative. Accordingly, we affirm the decision of the United States Army Court of Military Review.

I

The appellant asserts that simple negligence by a service member which causes the death of another soldier may not lawfully be found to constitute a criminal offense under Article 134, UCMJ. The basis of his assertion is that, in light of case law from certain civilian jurisdictions,¹ a higher degree of negligence must be established by the Government in order to punish a civilian in criminal courts for homicide. Consequently, it is suggested that military law which interprets Article 134, UCMJ, to punish a lower degree of negligent conduct in causing a death is incorrect and without legal effect. We perceive the asserted dichotomy in required standards of conduct in the present case to be an issue of substantive criminal law without constitutional dimensions. See Parker v. Levy, 417 U.S. 733, 749-51, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). We agree such negligent conduct is generally not sufficient to support a criminal conviction for murder or manslaughter in military² and civilian³ jurisdictions. Moreover, for the sake of this appeal, we will assume simple negligence in civilian jurisdictions⁴ does not form the basis of any other criminal offense. Nevertheless, such conclusions do not necessarily resolve the issue of whether its punishment under Article 134, UCMJ, is unlawful if sufficient notice of its proscription previously existed in military law. See Parker v. Levy, supra; United States v. Staten, 6 M.J. 275, 276 (C.M.A.1979).

Article 134, UCMJ, and its statutory predecessor Article of War 96, proscribe all disorders and neglects by a member of the services which prejudice the good order and discipline in the armed forces and all conduct of a nature to bring discredit upon the armed forces. It must be construed in light of authoritative interpretations of military law, existing service customs and common usages. See Parker v. Levy, supra, 417 U.S. at 753-54, 94 S.Ct. 2547; Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed. 838 (1857). This Court in United States v. Kirchner, 1 U.S.C.M.A. 477, 4 C.M.R. 69 (1952), specifically found that negligent homicide by a service member could be properly punished under Article 134, UCMJ, as such a disorder. Past court-martial practices with respect to the prosecution of negligent homicide under Article of War 96, and up to that time under Article 134, UCMJ, were noted in detail in that opinion.⁵ A more recent decision from the United States Army Court of Military Review clearly articulated the reasons for its prosecution ⁶ under Article 134, UCMJ:

There is a special need in the military to make the killing of another as a result of simple negligence a criminal act. This is because of the extensive use, handling and operation in the course of official duties of such dangerous instruments as weapons, explosives, aircraft, vehicles, and the like. The danger to others from careless acts is so great that society demands protection.

United States v. Ballew, CM 434077 (unpublished), p. 2 (A.C.M.R. 16 July 1976).

We agree with both the assessment of the history of court-martial practice regarding this negligent disorder offense and the articulation of its necessity for the military community. Accordingly, consistent with a long line of decisions from this Court,⁷ we reject appellant’s argument that its prosecution under Article 134, UCMJ, is unlawful in light of the law of civilian jurisdictions.

A second and more subtle challenge to the propriety of this conviction under Article 134, UCMJ, is raised in the appellant’s brief. There he contends that since Congress, in enacting the Uniform Code of Military Justice, did not provide for the prosecution of negligent homicide by a service member, Congress intended that only the homicide offenses of murder and manslaughter be prosecuted in military courts under Articles 118 and 119, UCMJ, respectively,⁸ and that no other homicide offenses were intended to be criminally punished. As the offense of homicide produced by simple negligence does not embrace a prima facie case under either of these two codal provisions, charging it under Article 134, UCMJ, is a product of unauthorized Presidential and judicial legislation. Consequently, he argues that such a prosecution is without legal effect. See U.S.Const. art. I, § 8.

The keystone of such an argument lies in the doctrine of preemption first mentioned by this Court in United States v. Norris, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). Simply stated, preemption is the legal concept that where Congress has occupied the field of a given type of misconduct by addressing it in one of the specific punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting a vital element. See United States v. Wright, 5 M.J. 106, 110-11 (C.M.A.1978). However, simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine. United States v. Maze, 21 U.S.C.M.A. 260, 262-63, 45 C.M.R. 34, 36-7 (1972). In addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way. United States v. Maze, supra; United States v. Taylor, 17 U.S.C.M.A. 595, 38 C.M.R. 393 (1968). See also United States v. Wright, supra.

It is clear in the present case that the appellant was found guilty of negligent homicide under Article 134, UCMJ, and not murder under Article 118, UCMJ, or manslaughter under Article 119, UCMJ. Our review of the legislative history of the latter two codal provisions indicates that their intended purpose was to simply clarify these two particular crimes as a matter of military law.⁹ We do not agree that the legislative history of these provisions indicates a clear intent to cover all homicides to the extent of eliminating negligent homicide as an offense under Article 134, UCMJ, the present general disorder prohibition.¹⁰ Negligent homicide prior to the enactment of the UCMJ was treated as a lesser included offense to murder and manslaughter¹¹ and prosecuted under the 96th Article of War as a general neglect or disorder.¹² It is reasonable to assume that Congress was aware of the existence of such military law when performing its constitutional task to make laws for the armed forces. See United States v. Taylor, supra at 597, 38 C.M.R. at 395. Accordingly, special reasons existed for not mentioning or treating negligent homicide in conjunction with murder or manslaughter in these provisions of the Code. See Sutherland, Statutes and Statutory Construction, § 47.23 (4th ed. Sands 1973). Moreover, in light of our decision in United States v. Kirchner, supra, Congress could have affirmatively acted in the formulation of the 1968 amendments to the Code to eliminate negligent homicide as a criminal offense if it so desired. We are extremely reluctant to conclude that Congress intended these provisions to preempt this offense from the spectrum of punishable criminal homicides in the absence of a clear showing of a contrary intent either in the language of these codal provisions or their legislative history. See United States v. Taylor, supra at 597, 38 C.M.R. at 395. Such a result is again consistent with our treatment of this criminal offense throughout the Court’s history.¹³ Accordingly, we find such an argument as to the granted issue without merit.

II

The second issue granted for review by this Court is whether the military judge erred to the substantial prejudice of the appellant by failing to give a limiting instruction sua sponte to the court members regarding evidence of the appellant’s previous uncharged misconduct. See United States v. Grunden, 2 M.J. 116 (C.M.A.1977); United States v. Bryant, 12 U.S.C.M.A. 111, 30 C.M.R. 111 (1961). In our estimation the consumption of beer by a service member off duty, whether on or off base, is not generally a criminal offense nor can it fairly be characterized as uncharged misconduct. Paragraph 138g, Manual for Courts-Martial, United States, 1969 (Revised edition). Therefore, as to these incidents described by his unit commander, we see no need for a limiting instruction of this nature. As for the arrest for disorderly conduct and the previous punishment for a five-day unauthorized absence, we do not believe the failure of the military judge to instruct as to the use of evidence of uncharged misconduct rises to the level of prejudicial error, since these incidents demonstrate no general predisposition to commit the offense of negligent homicide. See United States v. James, 5 M.J. 382, 383 (C.M.A.1978). Finally, the complete testimony of the unit commander clearly indicates that though the appellant purportedly had been drinking prior to his arrest on the disorderly conduct charge, he was only a passenger in the vehicle which originally had been stopped for operation in an unsafe manner. Accordingly, we find any evidentiary inference arising from such a circumstance to be tenuous, and in light of the character evidence instruction given by the military judge, no prejudice could have inured to the appellant.

The decision of the United States Army Court of Military Review is affirmed.

Judge COOK concurs.

1 . The cases cited by the appellant are: State v. Becker, 241 N.C. 321, 85 S.E.2d 327 (1955); State v. Baublits, 324 Mo. 1199, 27 S.W.2d 16 (1930); Cannon v. State, 91 Fla. 214, 107 So. 360 (1926).

2 . See Articles 118 and 119, Uniform Code of Military Justice, 10 U.S.C. §§ 918 and 919, respectively.

3 . See 65 C.J.S. Negligence § 1(13); 57 Am. Jur.2d, Negligence, § 96; Perkins, Criminal Law, pp. 62-4 (1957).

4 . Professor Perkins indicated in 1957 that homicide occasioned by ordinary negligence was criminally punishable by statute in a minority of jurisdictions, but that it was not a crime at common law or by statute in the majority of jurisdictions. See Perkins, supra.

5 . See United States v. Kirchner, 1 U.S.C.M.A. 477, 478, 4 C.M.R. 69, 70 (1952). See generally Zoghby, Is There a Military Common Law of Crimes? 27 Mil.L.Rev. 75, 90-91 (January 1965).

6 . See also Manual for Courts-Martial, United States, 1969 (Revised edition): Appendix 12, Table of Commonly Included Offenses for Articles 118-19; Appendix 6c, sample specification 154; para. 213f(12); para. 127c, Table of Maximum Punishments, under Article 134; Manual for Courts-Martial, United States, 1951: Appendix 12, Table of Commonly Included Lesser Offenses for Articles 118-19; Appendix 6c, sample specification 144; para. 198b; para. 127(c), Table of Maximum Punishments for Article 134.

7 . United States v. Romero, 1 M.J. 227 (C.M.A.1975); United States v. Bryan, 19 U.S.C.M.A. 184, 41 C.M.R. 184 (1970); United States v. Greenfeather, 13 U.S.C.M.A. 151, 32 C.M.R. 151 (1962); United States v. Russell, 3 U.S.C.M.A. 696, 14 C.M.R. 114 (1954); United States v. Kirchner, supra; United States v. Clark, 1 U.S.C.M.A. 201, 2 C.M.R. 107 (1952); United States v. Roman, 1 U.S.C.M.A. 244, 2 C.M.R. 150 (1952).

8 . The genesis of such an interpretation of the intent of Congress in enacting these particular provisions of the UCMJ rests on the legal maxim of statutory construction: “Expressio unius est exclusio alterius.” See Sutherland, Statutes and Statutory Construction, § 47.23 (4th ed. Sands 1973).

9 . See Index and Legislative History, Uniform Code of Military Justice (Washington, D. C. 1950), Hearings before a Subcommittee of the House Armed Services Committee on H.R. 2498, 81st Congress, 1st Session, pages 1231-32, 1240-50.

10 . In addition, the legislative history of Article 134, UCMJ, indicates that Congress intended this codal provision to allow prosecution of the disorder offenses previously punishable under the 96th Article of War. See Index, supra at 1235-38.

11 . See footnote 5, supra, and para. 180a, Manual for Courts-Martial, United States Army 1949; and Manual for Courts-Martial, U. S. Air Force, 1949.

12 . Paragraph 127c, Table of Maximum Punishments; Appendix 4, sample form 163, Manuals, supra.

13 . See footnote 7, supra.