NOTE 1: About this instruction. The following instruction should not be given when instructing on voluntary manslaughter as a lesser included offense. For the proper instruction in that case, see the Article 118 instructions.
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
(1) When committed upon a child under 16 years of age: DD, TF, 20 yrs, E-1. (Category 4)
(2) All other cases: DD, TF, 15 years, E-1. (Category 4)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, willfully and unlawfully kill __________, (a child under 16 years of age) by __________ (him) (her) (in) (on) the __________ with a __________.
c. ELEMENTS:
(1) That (state the name or description of the alleged victim) is dead;
(2) That (his) (her) death resulted from the (act) (omission) of the accused in (state the act or omission alleged) at (state the time and place alleged);
(3) That the killing of (state the name or description of the alleged victim) by the accused was unlawful; (and)
(4) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon (state the name or description of the alleged victim); [and].
[(5)] That (state the name or description of the alleged victim) was a child under the age of 16 years.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Killing a human being is unlawful when done without legal justification or excuse.
NOTE 3: Sudden passion not an element. When voluntary manslaughter is the charged offense, the existence of sudden passion caused by adequate provocation is not an element. The following instruction may be appropriate:
The offense of voluntary manslaughter is committed when a person, with intent to kill or inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion caused by adequate provocation.
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, although not in necessary defense of life or to prevent bodily harm, a fatal blow may be struck before self-control has returned. Proof that the accused was acting in the heat of passion caused by adequate provocation is not required. It is essential, however, that the (four) (five) elements I have listed for you be proved beyond a reasonable doubt before the accused can be convicted of voluntary manslaughter.
NOTE 4: Capacity to form the specific intent. Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, may be applicable as bearing upon the capacity of the accused to formulate the specific intent required for voluntary manslaughter. If such capacity is in issue, instructions must be given on involuntary manslaughter and other lesser included offenses that may be raised by the entire evidence in the case.
NOTE 5: Transferred intent. When the issue of transferred intent is raised by the evidence, the following instruction should be given:
When an individual with intent to kill or inflict great bodily harm attempts unlawfully to kill or to inflict great bodily harm upon a person (while in the heat of sudden passion caused by adequate provocation), but, by mistake or inadvertence, kills another person, the individual is still criminally responsible for the killing with the intent to kill or inflict great bodily harm because the intent is transferred from the intended victim of (his) (her) action to the actual victim. If you are satisfied beyond a reasonable doubt that the victim is dead and that his/her death resulted from the unlawful (act) (failure to act) of the accused in (state the act or failure to act alleged) with intent to kill or inflict great bodily harm upon (state the name or description of the individual other than the victim) you may still find the accused guilty of the voluntary manslaughter of (state the name or description of the alleged victim).
NOTE 6: Accused’s knowledge of child’s age. When the alleged victim is a child under the age of 16 years, provide the following instruction:
Knowledge that (state the name or description of the alleged victim) was under the age of 16 years is not an element of the offense.
Accordingly, if you are convinced beyond a reasonable doubt that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, you are advised that the prosecution is not required to prove that the accused knew that (state the name of the alleged victim) was under the age of 16 years at the time of the alleged offense, and it is not a defense to voluntary manslaughter upon a child even if the accused reasonably believed that (state the name of the alleged victim) was at least 16 years old.
NOTE 7: Causation. If an issue is raised regarding whether the act or failure to act on the part of the accused caused the death of the victim, it would ordinarily be necessary to instruct on lesser included offenses not involving death of the victim, e.g., aggravated assault. Also see Instruction 5-5, Causation (Lack of), Intervening Cause, or Contributory Negligence.
NOTE 8: Brain death instruction. The military standard for death includes brain death. An individual is dead who has sustained either: (1) irreversible cessation of spontaneous respiration and circulatory functions, or (2) irreversible cessation of all functions of the brain, including the brain stem. See US v. Gomez, 15 MJ 954 (ACMR 1983); US v. Jefferson, 22 MJ 315 (CMA 1986); and US v. Taylor, 44 MJ 254 (CAAF 1996). Instruction 7-24, Brain Death, may be adapted for this circumstance.
NOTE 9: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.