Murder Without intent: Depraved-Heart Murder Under Military Law

• Author: Major Eugene R. Milhizer
• Pages: 03

1. INTRODUCTION

   Of all the forms of homicide proscribed by military law, perhaps the most enigmatic is the mrlitary'a version of depraved-hean murder, otherwise known as "murder while doing an act inherently dangerous to others''' This offense is unique among the farms of homicide recogmzed under military law for several reasons.

   First among these reasons 1s the extraordinary analytical premise upon which the crime LS based. Depraved-hean murder was created for the pragmatic purpose of filling a perceived void in the law of murder, so that especially heinous killers could be characterized and punished as murderers even though they lacked a specific intent to kill or even injure. As onginally conceived, the offense was premised on the legal fiction of implied malm Thus, depraved-heart murder had as an element of proof a fictional mens rea requirement imposed by law so that the crime would be more consistent with the traditionally recognized forms of murder.

   The evolution of the analytical underpinnings for depraved-heart murder is also remarkable Over time, the type of malice necessary for depraved-heart murder was redefined so that the fiction of an

   MILITARY LAU- REVIEW [ V d 133

   implied malice was generally no longer required. at least in terms of the original meaning of that concept. This fundamental change in the basic premise of a form of homicide IS also unique.

   Finally. depraved-heart murder 1s distinctive in Its rarity Of the 331 separate specifications alleging all farms of homicide charged at courts-martial in the Army from 30 June 1986 through the end of 1988. only ten inmlved the mihtarfs counterpart to depraved-heart murderZ Of these ten specifmtioni. none resulted m a conmctmn for murder whlle domg an act inherently dangerous to othen The dearth of trials involving charges under article 118(3) has, in turn, resulted m scarce and often contradictory appellate guidance regard^ ing the basic requirements and parameters of the offense under mditar? law

   The significance and complexity of depraved-heart murder under mhtary law mcently was dlustrated by the Court of Mhtary Appeals' initial decision and its opinion on reconsideration in Cnited States u Berg The court in Berg addressed a variety of issues pertaining to murder under article 118(3). The opinions provide useful guidance as to the scope and substance of chis unusual form of homicide. The opinions also leave unanswered some important questions pertain-mg to the offense and. in Some respects. may even create further uncertainty about this crime.

   This article will explore Some of the important issues associated with the milnan-'s renion af depraved-heart murder. Specifically. the evolution of the offense m the armed forces will be reviewed and several unresolved questions pertaining to the current status of depraved-hean murder under military lam will be discussed First. The civilian onans and development of the offense will be examined briefly

   *The chargng of orher formi of homicide during this period u lollour

   19911 MURDER WITHOLT INTENT

   11. THE CIVILIAN ORIGINS OF DEPRAVED-HEART MURDER

   Homicide,l at common law, was di\,ided into four bmad categories: murder, manslaughter, excusable homicide, and justifiableThe common law described murder as beins an unlawful homicide

   International Dictionary of the Enghih Language Unabridged 1367 (P Gore 14th ed

   1061) The legal definition of malice traditionally has been recognized ebeing more

   expanilre Eg , Bromage b Prosrer 4 Barn &Cress 247 165 I1826) [ 'Malice in 1fsle8alnenremeansaimngful atfdoneintentionallv withoutjustcause orexcue 1

   the victim was clearly present-that IS. express-m moat murders, such as where the perpetrator premeditated or intended to kill without adequate Indeed. an early development of Amencan statutory law was the creation of degrees of murder to limit the application of the death penalty to especially malicious homicides (those with premeditation and deliberation) and to felony murderL3 Express malice also was apparent when the perpetrator harbored an intent to iwure another grievously and acted upon that intent and death resulted, such as when the perpetrator deliberately shoots at a victim's leg mending to wound hlm but unmtentmnalb kills the iictim.li

   Some homicides. however, were 50 aggravated and outrageous that the law sought to characterize and punish the perpetrator as a murderer even though he harbored no specific intent to kill, LWUE or commit another felony?' Thus, the phraje "malice aforethought dewloped mer time into a term of art that meant 'neither 'malice or 'forethought in the popular Malice w-as said to be im-plred' in all sorts of circumstances where the emotion. as it 1s com-monly undentood. was not present. Malice was implied 'even though there [was] no ammosty. enmity. or I I I - ~ I I I toward the v~ctim. and

   even though there [was] no desire to take human life''" As one author has put it, because of the unfortunate choice of this phrase malice aforethought' to distinguish the offense [of murder from other homicides]. 11 had subsequentl) to be twisted out of its ordi-nar) and logtcal sense into a peculiar, technical connotation 'Is

   The concept of implied malice has been colorfull) described in a variety of wqs. mast13 haimg coronary references A murderer

   . ..

   19911 MURDER WITHOUT INTENT

   who killed with implied malice was said to have acted with "a wsked, depraved, and malignant hean";l0 with "ageneral mahgnity of heart",20 and with "the heart regardless of social duty and deliberately bent an mischief."z1

   Murder based upon an implied make was found in B vmety of circumstances. A good early example is Rex v. Holloulaylx In that case, a boy who trespassed into a park to steal wood was caught and beaten by a groundkeeper, who then tied the boy to a horse's tail When the horse ran away the bay was dragged across the ground The boy later died from the injuries he sustained. Malice on the part of the Doundkeeper was implied from the surrounding circumstances; in other words, the court applied an objective standard to the groundkeeper's conduct and determined that it warranted a conviction for murderZa

   The more recent trend has been to abandon the fiction of implied malice 24 Generally, modern law no longer resorts to the convention of finding that the perpetrator implicitly intended to harm the "IC-tim in ail cases of murder Most statutes and courts now frankly charactenze a homicide as murder if the kiiier acted with a reckless and wanton disregard of an obvious risk to human life.z6 Malice issaid to be expressed by the reckless and wanton attitude of the perpetrator Modern statutes and courts tend to favor the term "depraved heart ' as describing this state of

   Virtually every modern statutory and decisional variation of depraved-heart murder has as Its gravamen two components: that the perpetrator cause the death of another by an act that 1) has Bvery high degree of nsk af death or serious bodily injury to another,

   "Blackntone mpm note 5 at 188

   "'1 East Pleas of the C r o ~ n

   268 11803)

   "Foiter, Crovn Laa 2b2 ild ed 18001

   8 B Bllas Warren on Homicide 5 60 (perm ed i936)

   MILITARY LA\\- REVIE\$' [Lo1 133

   and 2) IS As to the first component. the degree of risk LS not measured ~n the abstract. but LS evaluated in light of the surrounding cIrcumstmces thar are apparent and known to the perpetrator, or at least should reasonably be apparent and known bg him 2d For example. conductmg target practice in the direction of a goup of campen could be extremely risks behavior If rher presence IS unknown and not reasonably foreseeable to the gunman hoawrr, any resulting homicide would not amount to a depraved-heart murder

   As to the second component. because the perpetrator's justifica~ tion or lack of it are pertinent to ha culpabhts for a depiaLed-hearr murder the perpetrator's motneb far engaging in risky behax IOI are necessarily relevant in assessing his guilt Put another rray,the real or intended SOCL~Iutility of the perpetrator's conduct that cauced the homicide are considered in determining whether he acted witha depraved heart

   Three examples 4111 illustrate this pamt First. assume thar a per^

   son drives a truck carefulls but quickly through a crowded pedestrian mall to remove a powerful bomb that E about to explode. If the dnwr strikes and kills a pedestrian while engaging in this undeniably nskv behavior, he might nonetheless be entitled LO a complete defense of necessit? or lesser e\ik because of the overriding social utiliry of his conduct u Second. assume the drner d purpobe for speeding through

   19911 MURDER WITHOLT INTENT

   the mail 1s instead to cause the people there to scatter about and become fnghtened. This extremely risky behavior has no social uthty and thus the dnver who engages in it has a depraved heart Under these circumstances, the dnver would be guilty of murder if he struck and killed a pedestrian. Third, assume the driver's purpose for speeding through the mall 1s to chase and capture a shophfter. Although the dnver'i purpose LS socially useful. It 1s insufficiently weighty to justlfy takmg such ah@ nsk of serious ham If the dnver

   scnkes and kills a pedestrian under these circumstances, he may be guilty a1 some lesser form of criminal homicide, although lacking the depraved heart required for murdera2

   Civilian courts have found that a wide variety of conduct. giren the surrounding circumstances, can constitute a depraved-heart murder. that 1s conduct that creates a very high risk of death or serious bodily harm w,thoutjustification. ErampleÅnciude~~ throwing a beer mug at a woman who was carrying a lighted oil lamp, thereby causing her to burn to death.34 shooting into the caboose of a passing freight tramas or into a moving shooting touard a person riding a hone to scare the horse 50 that the nder would be thrown, but instead shooting and killing the shooting at a point near another person without aiming directly at driving an...