2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
54.c.(1)(b)(ii) r e a s o n a b l e a p p r e h e n s i o n o f r e c e i v i n g i m m e d i a t e bodily harm. Specific intent to inflict bodily harm is not required. (iii) Examples. (A) If Doe swings a fist at Roe’s head intending to hit Roe but misses, Doe has committed an attempt type assault, whether or not Roe is aware of the attempt. (B) If Doe swings a fist in the direct of Roe’s head either intentionally or as a result of culpable negligence, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed an offer type assault whether or not Doe intended to hit Roe. (C) If Doe swings at Roe’s head, intending to hit it, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed both on offer and an attempt type assault. (D) If Doe swings at Roe’s head simply to frighten Roe, not intending to hit Roe, and Roe does not see the blow and is not placed in fear, then no assault of any type has been committed. (c) Situations not amounting to assault. ( i ) M e r e p r e p a r a t i o n . P r e p a r a t i o n n o t amounting to an overt act, such as picking up a stone without any attempt or offer to throw it, does not constitute an assault. (ii) Threatening words. The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since the combination constitutes a demonstration of violence. (iii) Circumstances negating intent to harm. If the circumstances known to the person menaced clearly negate an intent to do bodily harm there is no assault. Thus, if a person accompanies an apparent attempt to strike another by an unequivocal announcement in some form of an intention not to strike, there is no assault. For example, if Doe raises a stick and shakes it at Roe within striking distance saying, “If you weren’t an old man, I would knock you down,” Doe has committed no assault. However, an offer to inflict bodily injury upon another i n s t a n t l y i f t h a t p e r s o n d o e s n o t c o m p l y w i t h a demand which the assailant has no lawful right to make is an assault. Thus, if Doe points a pistol at Roe and says, “If you don’t hand over your watch, I IV-100 will shoot you,” Doe has committed an assault upon Roe. See also paragraph 47 (robbery) of this part. (d) Situations not constituting defenses to assault. (i) Assault attempt fails. It is not a defense to a charge of assault that for some reason unknown to the assailant, an assault attempt was bound to fail. Thus, if a person loads a rifle with what is believed to be a good cartridge and, pointing it at another, pulls the trigger, that person may be guilty of assault although the cartridge was defective and did not fire. Likewise, if a person in a house shoots through the roof at a place where a policeman is believed to be, that person may be guilty of assault even though the policeman is at another place on the roof. (ii) Retreating victim. An assault is complete if there is a demonstration of violence and an apparent ability to inflict bodily injury causing the person at whom it was directed to reasonably apprehend that unless the person retreats bodily harm will be inflicted. This is true even though the victim retreated and was never within actual striking distance of the assailant. There must, however, be an apparent present ability to inflict the injury. Thus, to aim a pistol at a person at such a distance that it clearly could not injure would not be an assault. (2) Battery. ( a ) I n g e n e r a l . A “ b a t t e r y ” i s a n a s s a u l t i n which the attempt or offer to do bodily harm is consummated by the infliction of that harm. (b) Application of force. The force applied in a battery may have been directly or indirectly applied. Thus, a battery can be committed by inflicting bodily injury on a person through striking the horse on which the person is mounted causing the horse to throw the person, as well as by striking the person directly. (c) Examples of battery. It may be a battery to spit on another, push a third person against another, set a dog at another which bites the person, cut another’s clothes while the person is wearing them though without touching or intending to touch the p e r s o n , s h o o t a p e r s o n , c a u s e a p e r s o n t o t a k e poison, or drive an automobile into a person. A person who, although excused in using force, uses m o r e f o r c e t h a n i s r e q u i r e d , c o m m i t s a b a t t e r y . Throwing an object into a crowd may be a battery on anyone whom the object hits. (d) Situations not constituting battery. If bodily
harm is inflicted unintentionally and without culpable negligence, there is no battery. It is also not a battery to touch another to attract the other’s attention or to prevent injury. ( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t based on status of victims. ( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t , noncommissioned, or petty officer. The maximum punishment is increased when assault is committed upon a commissioned officer of the armed forces of the United States, or of a friendly foreign power, or upon a warrant, noncommissioned, or petty officer of the armed forces of the United States. Knowledge of the status of the victim is an essential element of the offense and may be proved by circumstantial evidence. It is not necessary that the victim be superior in rank or command to the accused, that the victim be in the same armed force, or that the victim be in the execution of office at the time of the assault. (b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of law enforcement duties. The maximum punishment is increased when assault is committed upon a sentinel or lookout in the execution of duty or upon a person who was then performing security police, military police, shore patrol, master at arms, or other military or civilian law enforcement duties. Knowledge of the status of the victim is an essential elem e n t o f t h i s o f f e n s e a n d m a y b e p r o v e d b y circumstantial evidence. See paragraph 38c(4) for the definition of “sentinel or lookout.” (c) Assault consummated by a battery upon a child under 16 years of age. The maximum punishment is increased when assault consummated by a battery is committed upon a child under 16 years of age. Knowledge that the person assaulted was under 16 years of age is not an element of this offense. (4) Aggravated assault. (a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm. ( i ) D a n g e r o u s w e a p o n . A w e a p o n i s d a n - gerous when used in a manner likely to produce death or grievous bodily harm. (ii) Other means or force. The phrase “other means or force” may include any means or instrumentality not normally considered a weapon. When the natural and probable consequence of a particular 54.c.(4)(b)(ii) use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force is “likely” to produce that result. The use to which a certain kind of instrument is ordinarily put is irrelevant to the question of its method of employment in a particular case. Thus, a bottle, beer glass, a rock, a bunk adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner likely to inflict death or grievous bodily harm. On the other hand, an unloaded pistol, when presented as a firearm and not as a bludgeon, is not a dangerous weapon or a means of force likely to produce grievous bodily harm, whether or not the assailant knew it was unloaded. (iii) Grievous bodily harm. “Grievous bodily harm” means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, torn members of the body, serious dama g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y injuries. (iv) Death or injury not required. It is not necessary that death or grievous bodily harm be actually inflicted to prove assault with a dangerous weapon or means likely to produce grievous bodily harm. (v) When committed upon a child under 16 years of age. The maximum punishment is increased when aggravated assault with a dangerous weapon or means likely to produce death or grievous bodily harm is inflicted upon a child under 16 years of age. Knowledge that the person assaulted was under the age of 16 years is not an element of the offense. (b) Assault in which grievous bodily harm is intentionally inflicted. (i) In general. It must be proved that the accused specifically intended to and did inflict grievo u s b o d i l y h a r m . C u l p a b l e n e g l i g e n c e w i l l n o t suffice. (ii) Proving intent. Specific intent may be proved by circumstantial evidence. When grievous bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, it may be inferred that grievous bodily harm was intended. On the other hand, that inference might not be drawn if a person struck another with a fist in a sidewalk fight even if the victim fell so that the victim’s head hit the curbstone and a skull fracture resulted. It is possible, however, to commit this kind of aggravated assault with the fists, IV-101
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harm is inflicted unintentionally and without culpable<br />
negligence, there is no battery. It is also not a<br />
battery to touch another to attract the other’s attention<br />
or to prevent injury.<br />
( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t<br />
based on status of victims.<br />
( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t ,<br />
noncommissioned, or petty officer. The maximum<br />
punishment is increased when assault is committed<br />
upon a commissioned officer of the armed forces of<br />
the United States, or of a friendly foreign power, or<br />
upon a warrant, noncommissioned, or petty officer<br />
of the armed forces of the United States. Knowledge<br />
of the status of the victim is an essential element of<br />
the offense and may be proved by circumstantial<br />
evidence. It is not necessary that the victim be superior<br />
in rank or command to the accused, that the<br />
victim be in the same armed force, or that the victim<br />
be in the execution of office at the time of the<br />
assault.<br />
(b) Assault upon a sentinel or lookout in the<br />
execution of duty, or upon a person in the execution<br />
of law enforcement duties. The maximum punishment<br />
is increased when assault is committed upon a<br />
sentinel or lookout in the execution of duty or upon<br />
a person who was then performing security police,<br />
military police, shore patrol, master at arms, or other<br />
military or civilian law enforcement duties. Knowledge<br />
of the status of the victim is an essential elem<br />
e n t o f t h i s o f f e n s e a n d m a y b e p r o v e d b y<br />
circumstantial evidence. See paragraph 38c(4) for<br />
the definition of “sentinel or lookout.”<br />
(c) Assault consummated by a battery upon a<br />
child under 16 years of age. The maximum punishment<br />
is increased when assault consummated by a<br />
battery is committed upon a child under 16 years of<br />
age. Knowledge that the person assaulted was under<br />
16 years of age is not an element of this offense.<br />
(4) Aggravated assault.<br />
(a) Assault with a dangerous weapon or other<br />
means or force likely to produce death or grievous<br />
bodily harm.<br />
( i ) D a n g e r o u s w e a p o n . A w e a p o n i s d a n -<br />
gerous when used in a manner likely to produce<br />
death or grievous bodily harm.<br />
(ii) Other means or force. The phrase “other<br />
means or force” may include any means or instrumentality<br />
not normally considered a weapon. When<br />
the natural and probable consequence of a particular<br />
54.c.(4)(b)(ii)<br />
use of any means or force would be death or grievous<br />
bodily harm, it may be inferred that the means<br />
or force is “likely” to produce that result. The use to<br />
which a certain kind of instrument is ordinarily put<br />
is irrelevant to the question of its method of employment<br />
in a particular case. Thus, a bottle, beer glass,<br />
a rock, a bunk adaptor, a piece of pipe, a piece of<br />
wood, boiling water, drugs, or a rifle butt may be<br />
used in a manner likely to inflict death or grievous<br />
bodily harm. On the other hand, an unloaded pistol,<br />
when presented as a firearm and not as a bludgeon,<br />
is not a dangerous weapon or a means of force<br />
likely to produce grievous bodily harm, whether or<br />
not the assailant knew it was unloaded.<br />
(iii) Grievous bodily harm. “Grievous bodily<br />
harm” means serious bodily injury. It does not include<br />
minor injuries, such as a black eye or a bloody<br />
nose, but does include fractured or dislocated bones,<br />
deep cuts, torn members of the body, serious dama<br />
g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y<br />
injuries.<br />
(iv) Death or injury not required. It is not<br />
necessary that death or grievous bodily harm be actually<br />
inflicted to prove assault with a dangerous<br />
weapon or means likely to produce grievous bodily<br />
harm.<br />
(v) When committed upon a child under 16<br />
years of age. The maximum punishment is increased<br />
when aggravated assault with a dangerous weapon<br />
or means likely to produce death or grievous bodily<br />
harm is inflicted upon a child under 16 years of age.<br />
Knowledge that the person assaulted was under the<br />
age of 16 years is not an element of the offense.<br />
(b) Assault in which grievous bodily harm is<br />
intentionally inflicted.<br />
(i) In general. It must be proved that the<br />
accused specifically intended to and did inflict grievo<br />
u s b o d i l y h a r m . C u l p a b l e n e g l i g e n c e w i l l n o t<br />
suffice.<br />
(ii) Proving intent. Specific intent may be<br />
proved by circumstantial evidence. When grievous<br />
bodily harm has been inflicted by means of intentionally<br />
using force in a manner likely to achieve<br />
that result, it may be inferred that grievous bodily<br />
harm was intended. On the other hand, that inference<br />
might not be drawn if a person struck another<br />
with a fist in a sidewalk fight even if the victim fell<br />
so that the victim’s head hit the curbstone and a<br />
skull fracture resulted. It is possible, however, to<br />
commit this kind of aggravated assault with the fists,<br />
IV-101