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knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him.' (citations omitted)

The extent to which the Brown' rule was being followed by various state jurisdictions was surveyed in an annotation entitled "Homicide: duty to retreat when not on one's own premises” 8 and it was found, with modifications, to have been the majority rule. Another rationale advanced to support abolition of the duty to retreat to the wall is found in a Missouri decision 10 where a balancing of the rights of the two parties to the conflict is attempted :

It is true, human life is sacred, but so is human liberty; one is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment such an anomaly to be possible. In other words, the wrongful and violent act of one man shall not abolish or even temporarily suspend the lawful and constitutional right of his neighbor. And this idea of the nonnecessity of retreating from any locality where one has the right to be is growing in favor, as all doctrines based upon sound reason inevitably will, and has found voice and expression elsewhere.

Thus is can be seen that by the mid-1920's, the requirement that one must retreat to the wall in order to plead self-defense had either been eliminated or substantially modified in the Federal courts and the majority of state jurisdictions. Its place had been taken by a new rule more liberal (more defendants could qualify), more modern (recognizes the existence of firearms), and more in keeping with the American tradition of free choice of action (one abiding by the law need not flee from the law-breaker). Despite this, the Manual for Courts-Martial 11 contained the following language concerning the substantive law of murder, proscribed by Article 118 of the Uniform Code of Military Justice; 12

To excuse a person for a killing on the ground of selfdefense, he must have believed on reasonable grounds that killing was necessary to save his life or the lives of those whom he might lawfully protect, or to prevent great bodily harm to himself or them. The danger must be believed on reasonable grounds to be imminent, and no necessity will exist until the person, if not in his own home or at a place where he had a duty to remain, has retreated as far as he safely can. To avail himself of the right of self-defense, the person doing the killing must not have been the aggressor or intentionally provoked the altercation; but if after provoking a fight he withdraws in good faith and his adversary follows and renews the fight, the latter becomes the aggressor. (emphasis added)

From this quotation, it is obvious that in a case where the excuse of self-defense is raised (or, for that matter, the basic question of whether the defense has been raised) many difficult factual questions will be posed, e.g., the "reasonableness" of accused's belief that danger was imminent; that he feared that death or grievous bodily harm, rather than lesser injuries, were intended; that he was not the ag. gressor, etc. It is intended here to consider the legal, rather than factual, validity of that portion of the preceding quotation which imposes a duty to retreat.

An examination of the legal and legislative history 14 and basis 15 of the UCMJ and the Manual contains nothing to indicate that consideration of the divergent views of retreat expressed in American jurisdiction was undertaken. There was ample precedent for requiring retreat, however, since such a duty had long been the rule in the military, appearing in substantially identical form as early as the 1928 edition of MCM, U.S., Army, paragraph 148a. Once in the 1951 Manual, the theory that retreat was necessary found its way into decided cases and, eventually, into pamphlets published by the Army 16 and Air Force 17 for use as instructional guides by law officers and special courts-martial presidents.

In United States v. Hackworth 18 an Army Board of Review, although holding that selfdefense was not reasonably raised by the evidence of record, stated that accused's actions

6. Id. at 343.
7. Note 4, supra.
8. 18 A.L.R. 1279 (1922).
9. The Brown rule was being followed in Arkansas, Colorado, Dis-

trict of Columbia, Kentucky, Louisiana, Michigan, Montana,
Nebraska, Nevada, New York, North Carolina, Ohio, Oregon,
Rhode Island, South Dakota, Virginia, West Virginia, Wisconsin.
In those states, one in imminent danger, as he sees it, of losing
his life or of receiving great bodily harm from his assailant,
need not retreat. Other states limit this no-retreat rule to those
situations where the danger is so imminent that there is no prob-
able means of escape. This is the rule in Alabama, Delaware,
Iowa, Pennsylvania. The assailed person may stand his ground
if he is put in “reasonably apparent danger" in California,
Illinois, Indiana, Kansas, Mississippi, Missouri, Oklahoma, Texas,

Washington. 10. State v. Bartlett, 170 Mo 658, 71 S.W. 148 (1902). 11. MCM, 1951. Hereinafter referred to as the Manual, 12. Act of 5 May 1950, 64 Stat. 108; 10 U.S.C.A. :$ 801-940. Herein

after referred to as UCM).

13. MCM, para. 197c.
14. Index and Legislative History, Uniform Code of Military Justice,

U.S. Govt. Printing Office (1950).
15. Army pamphlet, Legal and Legislative Basis, Manual for Courts.

Martial, United States (1951). 16. Dept. of Army Pamphlet No. 27-9, Military Justice Handbook,

The Law Officer, App. VIlla (1958). 17. Air Force Manual AFM 110–5, Judge Advocate General Ac

tivities, Court-Martial Instruction Guide, 105 (1959). 18. 10 CMR 236 (1953), pet. rev, den. 11 CMR 248 (1953).

were inconsistent with a legal duty to retreat. In United States v. Troglin, 19 the Court of Military Appeals 20 was called upon to decide whether, on the facts there present, the law officer should have instructed the members of the court-martial on self-defense. The Court there seems to have adopted a variation of the "duty to retreat" doctrine, 21 when, in finding that the danger was not imminent, and the accused made no attempt to retreat when he had a reasonable opportunity to do so without increasing the hazard, it held that self-defense was not reasonably raised. Thus, the only exception found to the rule imposing an absolute duty to retreat was when the danger is imminent. This is but another way of saying what was said in the Manual, quoted supra, i.e., retreat as far as one safely can. Citing the above-quoted portion of the Brown case, the Court said: We are of the opinion that when analyzed properly, the rule announced by the Federal Courts is substantially this: Assuming danger to be imminent, before a killing can be excused the killer must assume the duty to retreat; that duty is measured by the force and imminence of the danger and the availability of an opportunity by which the accused may retreat reasonably without increasing his peril."

In United States v. Adams,23 USCMA found that a soldier's tent was analogous to his "home", and upheld the common law rule making it unnecessary, under such circumstances, to retreat. Once again citing the Brown rationale as quoted in Troglin, the Court reiterated the imminent danger qualification to the rule requiring retreat.

As previously noted, the Manual provision calling for retreat was incorporated into instructional pamphlets promulgated by the Army and Air Force. It was this incorporation, leading as it inevitably would, to customary inclusion of the retreat doctrine in the instructions given to courts-martial when self-defense was in issue, which gave USCMA pause to reconsider the efficacy of the doctrine. In this regard, it can be argued with some justification that instructions calling for retreat, but couched in such nebulous terms as “imminent danger" and "as far as he safely can" are essentially neutral. However, this very nebulousness can lead to the postulate that the requirement of retreat can easily be misapplied to the facts being evaluated by a particular court. 19. U.S. v. Troglin, 3 USCMA 385, 12 CMR 141 (1953). 20. Hereinafter referred to as USCMA. 21. Note 9, supra. 22. Note 4, supra, at 148. 23. 5 USCMA 563, 18 CMR 187 (1955).

In United States v. Smith 24 the doctrine of "retreat to the wall” was eliminated from the law of self-defense as an excuse. In that case, according to the accused, he was, at the time he stabbed the victim, lying on a concrete floor, with his adversary astride him, pounding accused's head on the floor. The eventual victim had threatened to "bust my skull”, and thus put in fear, accused first tried to scare the victim by telling him he had a knife; when this failed, he took the knife from his pocket and stabbed the victim. By this testimony, accused had raised the issue of self-defense, and the law officer so instructed, including that portion of the standard self-defense instruction (apparently from the Army pamphlet) 25 requiring retreat. Applying this instruction to accused's version of the homicide, it would appear that any danger of the court's being misled was de minimis. Thus, an accused who is pinned to the floor by his adversary has no opportunity to retreat, so it follows that he has retreated as far as he safely can! Citing, among others, the Brown, Troglin, and Adams cases, the Court said:

From the foregoing, it should be apparent that the doctrine of "retreat to the wall” has no place in selfdefense instructions. Especially, after Adams, it should be clear that the Supreme Court's decision in the Brown case states the appropriate rule. There is no categorical requirement of retreat. Rather, the opportunity to do so safely is only a single factor, to be considered by the triers of fact together with all the circumstances in evaluating the issue of self-defense. And those who read the Manual for Courts-Martial to impose an absolute and categorical requirement of retreat before one may, in defense, kill or resort to use of force likely to result in grievous bodily harm clearly misconstrue the rule.” (Footnote omitted)

The result of the Smith holding is a slight semantic shift from a “duty to retreat as far as he safely can", the language employed by the Manual, to "the opportunity to do so [retreat] safely”—as merely a factor to be considered. The practical effect of this decision will be to eliminate the seemingly strict language "no necessity [to kill] will exist until the person has retreated as far as he safely can" 27 or "there must have been no way open, as it appeared to him at the time, whereby, consistent with his own safety he could have escaped or retreated and thus avoided the danger" 28 from future instructions on self-defense. Substituted therefor should be language which simply calls attention 24, 13 USCMA 471, 33 CMR 3 (1963). 25. Army pamphlet No. 27-9, op. cit. supra, App. VIlla. 26. 13 USCMA at 479, 33 CMR at 11. 27. Army pamphlet No. 27-9, op. cit. supra, App. VIIIa. 28. Air Force Manual, op. cit. supra at 105–106.

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to the presence or absence of avenues of retreat, without making retreat an essential part of a perfect defense.

USE OF “LIKE DEGREE OF FORCE" In defending against an assault wherein death or grievous bodily harm is not feared, it is generally accepted that one may meet force with force. And this is so even though he might with absolute safety avoid the threatened injury or bodily harm by retreating.29 Thus, unlike homicide cases, where retreat was once required, in simple assault cases there has been no such duty,30 and the failure to use available avenues of retreat is only a factor which may be considered in deciding if accused was indeed an aggressor. All that is necessary to br g this right to use force into being is that the victim must have done something of a character to give the accused reasonable grounds to suppose himself in imminent danger.31

In the law of self-defense as it applies to simple assaults, the use of the term "like degree of force” has followed a course strikingly similar to the retreat to the wall doctrine in homicide self-defense law. For here too, the questioned language appears in the Manual in the discussion of the substantive law of assaults in violation of Article 128, UCMJ:

With respect to the excuse of self-defense, a person may meet force with a like degree of force ... (emphasis added)

And once again, the quoted language was incorporated into the Army 33 and Air Force 34 instructional pamphlets. This, naturally, led to the inclusion of the phrase "like degree of force" in the instructions given to courts-martial when self-defense was in issue. In the case of United States V. Acosta-Vargas,35 it was held by USCMA that:

instructions on self-defense going no further than that a person may meet force with a like degree of force, may not necessarily give the court-martial an adequate standard by which to measure the actions of the accused. That language, by itself, does not precisely state the general concept involved, and it warrants amplification ... in the earlier case of United States v. Weems, 3 USCMA 469, 13 CMR 25, after alluding to "like degree of force", the opinion of this court went on to explain that in evaluating the extent of force utilized by the accused, the respective size of the combatants, and their pugilistic ability, among others, were the factors properly to be taken into consideration by the triers of fact.

We strongly recommend that the language "with a like degree of force" be eliminated from instructions to the court-martial in future cases. Under the better practice the charge given to the triers of fact should, in appropriate language, [footnote omitted] convey the principle to which we have alluded previously herein. That is, although a defender may not use such force as to become the aggressor, he is not limited to the exercise of precisely identical force or degree thereof as is asserted against him; rather, he may employ such not inordinate means as he believes on reasonable grounds necessary for protection against the impending harm under the circumstances. (emphasis added)

From the foregoing quotation, it can be seen that what USCMA feared was that triers of fact might interpret like to mean identical, thereby holding the accused to a too limited area of legally permissible conduct in his defense. For the old standard the court suggests a standard which, in essence, calls for a resort to such force as accused believed reasonable. This is in accord with the general rule in most civilian jurisdictions, where, in self-defense, accused may not have used such force as to make himself the aggressor, or, in more liberal jurisdictions, not so excessive as to be clearly vindictive under the circumstances.37 The latter rule allows more latitude to the accused than the USCMA formula, so that, in self-defense, the innocent victim of the attack may use measures which insure the attack will not be renewed, rather than achieving a mere standoff. It also permits the accused, acting under highly emotional and fast moving conditions, greater leeway than might seem reasonable to dispassionate triers of fact. It is suggested that amplification of the

(Continued on page 314) 36. Id. at 393. 37. 4 Am. Jr. Assault and Battery, $ 50. “As stated by the American

Law Institute, one may not use any means of self-defense whick is likely to cause injury or harm in excess of that necessary or reasonably believed to be necessary for one's own protection, although he may be permitted to do an act which is intended to put another in immediate apprehension of bodily harm in excess of that which he is privileged to inflict, if his act is intended and reasonably believed by him likely to do no more than to create such apprehension."


29. 4 Am. Jur. Assault and Battery, $ 47. 30. 6 C.J.S. Assault and Battery, $ 92. 31. 4 Am. Jur. Assault and Battery, $ 38, where it is said: "In other

words, one is privileged to use force against another for the purpose of protecting himself from bodily harm or an offensive contact, whether trivial or serious, which he believes will result from conduct that is apparently intended to cause injury or offensive contact or is such as to put him in apprehension thereof ... The first and essential element of the establishment of a perfect self-defense is the necessity, actual or apparent, for the exercise of the right; if the alleged self-defender uses force against another where it is not necessary, or at least where he has no reasonable grounds for believing it is necessary for his own protection he becomes an aggressor and violates the law. The situation must be such as to cause him reasonably to eve that injury to himself can be prevented only by the immediate

infliction of injury upon the other. 32. MCM, para. 207a. 33. Army pamphlet No. 27–9, op. cit. supra, App. VIIIc. 34. Air Force Manual, op. cit. supra, at 106. 35. 13 USCMA 388, 32 CMR 388 (1962).


An Examination of the Current Law

Its Underlying Policies



interests have long been recognized as forces which are capable of advancing their interests more effectively than can individuals. For this reason the formation of amalgamations of individuals with common interests, such as political parties, unions, or business partnerships, has been a continuing phenomenon in American history. While concerted action may be used to promote legitimate purposes, the same type of action is readily adaptable to unlawful or even criminal designs. Such a criminal combination presents grave threats to society.

The peculiar danger to society which is presented by a combination formed to promote evil or criminal designs has been recognized from earliest times. At common law such combinations were subject to criminal sanctions ; such combinations are prohibited by statute or by common law in all American jurisdictions at the present time.

An early definition of the crime of conspiracy at common law was: 'a consultation and agreement between two or more, to appeal, or indict an innocent falsely and maliciously of felony, whom, accordingly, they cause to be indicted or appealed; and afterward the party is lawfully acquitted by the verdict of twelve men.'” 3

It is clear that this definition included among its essential elements requirements that: (1) a combination be formed, (2) a person be falsely accused of a felony, (3) the person thereafter indicted, and (4) the person be subsequently acquitted. A fulfillment of these requirements required that the plot meet with success before it would be subject to prosecution. This require

ment was removed by the Poulterer's Case - in 1611. In that case the court found that a combination of individuals which had unsuccessfully attempted to have a person indicted for robbery had committed the common law crime of criminal conspiracy.

The requirement of success for the undertaking was removed by this case; later developments in the law of conspiracy removed the necessity that any act be done in furtherance of the agreed undertaking. Unless altered by statute, the criminal law of all American jurisdictions contains a common law crime of conspiracy. A working definition of this crime would be the combination of two or more persons to accomplish by concerted action some criminal or unlawful act or to accomplish by criminal or unlawful means some act not in itself criminal or unlawful. There is no necessity that any action be taken to actually accomplish the plans upon which the conspirators have decided. Military law, however, requires that such an act be performed before an actionable conspiracy exists.?

At first glance this treatment of conspirators would seem to be an anomaly in the law. Apparently a mere state of mind, an intention to commit a prohibited act, will subject a person to criminal sanctions. In this instance, however, the appearances may be deceptive. What the law is seeking to punish is not the state of the conspirators' minds, but rather the act of combination which they have performed in order to pursue ends not desired by society. The agreement between the members of the conspiracy and the intent of the conspirators are not the dangers against which society must be protected; in their combination and confederation lies the danger.

To protect itself against such alliances, society seeks to punish those who have formed such combinations against the public. As a writer on the subject has stated, “A combination of united 4. Burdick, supra note 1, 8 990. 5. 11 Am. Jur. Conspiracy $ 2, All federal crimes are statutory, 6. Nash v. United States 229 U.S. 373 (1913). 7. Art. 81, UCMJ.

*Lieutenant William H. M. Morton, USNR, is presently assigned as Appellate Defense Counsel in the Office of the Judge Advocate General, West Coast. He received the B.A. degree (with honors) from Williams College, Williamstown, Massachusetts, in 1959 and the LL.B. degree from Harvard Law School in 1962. LT Morton holds membership in the Massachusetts Bar Association, the Boston Bar Association and the American Bar Association.

1. 3 Burdick, Law of Crime $ 484 (1946). 2. 11 Am. Jur., Conspiracy $ 2. 3. 15 C.J.S., Conspiracy $ 35 at 1058 quoting Coke Institutes part

III, 142.

wills to effect a harmful object is far more dangerous to public welfare and safety than the criminal intent of a single individual. Human experience justifies the doctrine that the union of two or more persons in a common criminal purpose, where each associate aids and strengthens the will of the others, is much more likely to result in evil consequences than the mere intent of only one person.” 8

The coordination of activities and the pooling of skills and resources—which aid in the actual accomplishment of the plan—are reasons for such a confederation to be prohibited by law. A further factor, of great importance, is the group pressure upon each member of the alliance ot fulfill his part of the plan. Where one man involved in an individual transaction might decide to abandon his plan, one member of a group of several conspirators is far more likely to continue with the plot until its consummation as a result of the tacit or overt coercion of the group.

The types of behavior encompassed within the areas prohibited to a conspiracy are legion. Few examples need be given to illustrate the type of acts which lie within the prohibition against the attainment of criminal ends through legal acts, or the utilization of criminal means to obtain illegal objects. Of greater difficulty is the type of conduct characterized as "unlawful", although not criminal. To be within the boundary of the behavior characterized as unlawful in this context behavior must exceed a mere civil wrong, such as a trespass. The acts envisioned must be corrupt, dishonest, fraudulent or immoral, or they must be of a nature to be particularly dangerous to particular individuals or to the public at large.10 While activities containing a modicum of anti-social behavior on the part of an individual may be countenanced by society, the same activities may be highly dangerous to the public when supported by the concerted power of a group.

With the existence of laws to punish accessories to crimes and attempts to commit crimes, many may wonder why a combination designed to effectuate an unlawful act is itself subject to punishment. Why does not the law wait until the alliance attempts to put its plans into effect, and thereafter punish the members of the

group for whatever substantive crimes they may have committed or may have attempted to commit?

Several answers to this question exist. As noted above, types of conduct which do not amount to substantive crimes when done by individuals are so dangerous to society when pursued by groups that they must be controlled. Another answer lies in the matter of time. To be guilty of an attempt offense a person must have gone beyond mere preparation for the crime and must have entered upon its actual commission.11 The danger of the concerted action of a conspiracy is such, however, that it is necessary that society be able to act in its own protection before the combination actually enters upon the commission of its unlawful or criminal purposes. The reason for this is that the chances for the success of the crime are far greater when several persons have united to commit it than when a lone individual has embarked upon a course of criminal conduct. Since the probability of success is greater, society must be able to protect itself against the combination at a point further removed from the successful completion of its plot.

Under the general federal conspiracy statute the crime of conspiracy has not been committed until an "overt act" has been committed in furtherance of the aims of the combination.12 Other federal statutes governing combinations effected to commit particular acts, however, do not require any overt act before the crime of conspiracy has been committed. Examples of these statutes are those governing conspiracies involved with restraint of trade,13 impeding federal officers, and denying their rights under the Constitution or laws of the United States to citizens. 10

Article 81 of the Uniform Code of Military Justice defines a conspiracy as a combination of two or more persons, at least one of whom is subject to the Code, who have agreed to commit an offense under the Code by concerted action and by one or more of whom an overt act has

8. Burdick, supra note 1 at 435.
9. New England Cement Gun Co. v. McGivern 105 N.E. 885 (1916).

The object of a conspiracy against the United States must be

within the class made criminal. 15 C.J.S. Conspiracy $ 48. 10. 15 C.J.S. Conspiracy $ 42. Of particular interest is the motive

with which the acts are done. While the result of a price policy may be the bankruptcy of a competitor, such activity is permissible under the antitrust laws as long as the policy is not instituted for the purpose of reducing competition. See State v. Parker, 158 A, 797 (1932).

11. United States v. Coplon 185 F. 2d 629 (2d Cir, 1950); Cert. den.

342 U.S. 920 (1952). 12. 18 USC § 371. The statute prohibits conspiracies directed at the

commission of any offense against federal law or the defranding of the government or any of its agencies. The prescribed penalty is a $10,000 fine and/or five years' imprisonment. If the object of the conspiracy is a misdemeanor, however, the punishment for the conspiracy is limited to that established for the

misdemeanor. 13. 15 USC 88 1, 2, 3. 14. 18 USC § 372. 15. 18 USC § 241. The statute governing espionage activities does

require an overt act by a member of a group involved in selling defense information. 18 USC § 293.

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