COURT-MARTIAL REPORTS OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE UNITED STATES V. Staff Sergeant HUBERT A. SELLERS, AF 14182532, Headquarters and Headquarters Squadron, 1503d Air Base Group Murder - malice aforethought. ACM 3182 1. Malice does not necessitate "ill will", "actual intent", or "premeditation" (MCM, 1949, par 179a), and may be presumed when a homicide is caused by the use of a deadly weapon in a manner likely to result in death (ACM 1646, Espineli and Rillo, 2 CMR 627; MCM, 1949, par 125a). [See 26 Am Jur, Homicide, §§ 40, 308.] Dangerous weapon - knife. 2. Although a knife may not inherently be a deadly weapon, it becomes one when it is so used that it is likely to cause death or serious bodily injury (CM 329972, Griffin, 78 BR 221, 228, and cases cited), especially when employed against a vital part of the body (ACM 1462, Keller et al, 2 CMR 538). Murder malice- intoxication. 3. The question as to whether the accused's voluntary indulgence of liquor impaired his deliberative faculties to such an extent as to negative the existence of "knowledge" inherent in malice (CM 334570, Morales, 1 BR-JC 197, 207), is, in the first instance, for the court (CM 334745, Higgs, 4 BRJC 377, 394), and the Board of Review also has the duty and responsibility to resolve this issue (MCM, 1949; AW 50g; ACM 1646, Espineli and Rillo, 2 CMR 627). [See 26 Am Jur, Homicide, § 116.] Murder malice — intoxication. 4. Consideration of the record warranted the court in concluding that, notwithstanding the absence of deliberation and premeditation, the accused had not so passed beyond the penumbra or "twilight zone" of intoxication (ACM 3182) as to have rendered himself incapable of forming a specific intent (22 CJS, pp 133, 134), and the accused's muscular and mental co-ordination as disclosed by the record, his flight, conduct and declarations at and subsequent to his apprehension by Air Policemen, are circumstances more than adequate to warrant the Board in concurring in the finding of the court that the killing was with malice aforethought (CM 337903, Shaffer, 4 BR-JC 163, 172; Wharton's Criminal Evidence, 11th ed, Vol 1, §§ 300, 301, 304). [See 26 Am Jur, Homicide, § 116.] 5. Motive is not an element of the offense of murder and the prosecution is never required to prove it although it may be permitted to do so. The absence of motive is especially immaterial where, as here, eyewitness testimony has been adduced. (Citing Schmidt v. United States, 133 F 257, 263; CM 334570, Morales, 1 BR-JC 197, 208.) Trial view of premises by court. 6. In granting a request of defense counsel that the court view the premises where the alleged homicide occurred, the court exercised its sound discretion, and the view was in this instance of value in enabling the court to apply to the location the evidence received from the witnesses. (Citing Underhill's Criminal Evidence, § 409, pp 831 et seq.) [See 53 Am Jur, Trial, § 442.] Courts-Martial-challenges conscientious scruples against capital pun ishment. 7. The trial judge advocate's examination of each member of the court upon the voir dire as to the presence or absence of conscientious scruples against capital punishment is permissible where premeditated murder is charged. One entertaining such scruples may rightfully be challenged for cause by the prosecution. (Citing CM 312088, Allen, 4 BR (A-P) 381, 383.) [See 31 Am Jur, Jury, § 159.] Trial by General Court-Martial, convened at Haneda Air Base, 1. The record of trial in the case of the airman named above has been examined by the Board of Review and the Board submits this, its holding, to The Judge Advocate General, United States Air Force. 2. The accused was tried upon the following charge and specification: CHARGE: Violation of the 92d Article of War. SPECIFICATION: In that Staff Sergeant Hubert A. Sellers, Headquarters and Headquarters Squadron, 1503d Air Base Group, did, at Tokyo, Japan, on or about 22 April 1950, with malice aforethought, willfully, deliberately, feloniously, unlawfully, and with premeditation kill Hiroshi Kaneko, a human being, by stabbing him with a knife. The accused pleaded not guilty to the charge and specification but was found guilty of the specification except the words, "and with premeditation"; of the excepted words not guilty, and guilty of the charge. No evidence of previous convictions was introduced. The court sentenced the accused to be dishonorably discharged the service, to forfeit all pay and allowances to be (ACM 3182) come due after the date of the order directing execution of the sentence, and to be confined at hard labor at such place as proper authority might direct for twenty years. The reviewing authority approved the sentence; designated a United States Penitentiary, Reformatory, or other such institution as the place of confinement, the prisoner to be committed to the custody of The Attorney General or his designated representative for classification, treatment and service of the sentence of confinement; and forwarded the record of trial for action pursuant to Article of War 50e. 3. Evidence for the Prosecution. On the night of 22 April 1950 between the hours 2130 and 2200, accused visited a Japanese drinking establishment and, offering the proprietor thereof 200 yen, requested some beer. The latter complied and brought two cups whereupon accused invited the latter "to have a drink." Accused remained thereat for about 30 or 40 minutes and then left (R. 83). Thereafter and between the hours of 2300 and 2400, a Japanese policeman who was on duty in a suburb in the vicinity of Tokyo received a report a report from a female Japanese national concerning an incident involving a “soldier" which required his official action. Pursuant thereto he proceeded to a place indicated as the locale of the incident and observed the accused in front of a fruit stand (R. 16; Pros. Ex. 1). The area was illuminated by electric lights and lanterns and the accused (who was drunk) appeared to be "annoying the Japanese pedestrians" who were coming from the western portion of the thoroughfare (R. 28, 29). The police officer noticed that the accused had something in his hand but did not have an opportunity to ascertain what it was (R. 18). When accused caught sight of the police officer, he raised his right arm and pursued the officer (R. 18, 30). The accused "was running fast", but the police officer (who was wearing "Occupation shoes" and could not "run so fast") ran with "all" his "might" and was able to keep out of - accused's reach (R. 29-31). The po liceman then hid at the wicket (an enclosure or temporary gate) situated directly opposite the Kamata railroad station (R. 31). While concealed therein the police officer observed a Japanese civilian, subsequently identified as Takashi Tanizaki (who appeared to be drunk), approach from the north. The civilian then departed and immediately thereafter another Japanese national approached the accused and when he reached a distance of approximately one foot from the accused, the policeman observed the accused grasp the civilian and deliver what appeared to be a blow to the latter on the left side of his abdomen (R. 19, 20). The victim whom the policeman identified as Hiroshi Kaneko "started to fall", whereupon accused departed by going "through" the "closed" wicket gate, the height of which was approximately five feet six inches (R. 22, 23). A female employee (Japanese national), one of the workers in a stall in the area on the evening in question, observed the accused chase the Japanese policeman (R. 40, 42). She also noticed that the accused had in his hands a kitchen knife, whereupon she shouted, "The soldier has a kitchen knife, so everybody be careful." She then heard loud voices calling, "Hurry up and call the MP's." The person being chased eluded his pursuer and hid near the railroad tracks (R. 41). Immediately thereafter she noticed a Japanese civilian walking in the accused's direction. The civilian succeeded in eluding the accused "with the use of his elbow" (R. 41). Thereafter another Japanese national (Hiroshi Kaneko) approached from the opposite direction, at which time accused seized the latter by the wrist and "took him over to the wicket" (R. 41). The victim attempted to raise his free arm, at which time accused "stabbed" him with a kitchen knife by thrusting the 'knife into the latter's abdomen (R. 42). Mr. Tanizaki (the first Japanese civilian hereinbefore referred to) was proceeding along an alleyway near the Kamata station and stopped to urinate (R. 47). As he was unbuttoning his pants, he was "pushed on the shoulder" |