United States v. Carmon

Opinion of the Court Ferguson, Judge: After a Fort Worth, Texas, grand jury refused to indict accused, he was brought to trial before a general court-martial convened by the Commander, Second Air Force, charged with the unpremeditated murder of Airman Coy W. Witherspoon, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918. Found guilty of voluntary manslaughter, in violation of Code, supra, Article 119, 10 USC § 919, he was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for four years, and reduction. Intermediate appellate authorities affirmed, and we granted Carmon’s petition for review on the questions whether the evidence placed self-defense in issue and whether the law officer’s instructions on that doctrine were prejudicially erroneous. Carmon and Witherspoon were assigned to the same unit at Carswell Air Force Base, Texas. They became friendly, and Witherspoon often used Carmon’s motorcycle. In return, Carmon frequently borrowed Wither-spoon’s automobile. In December 1961, Carmon met Sue, who apparently had been dating Witherspoon. Using With-erspoon’s car, accused began to see Sue regularly. He eventually proposed to her, was accepted, and gave her a ring. Witherspoon learned of the accused’s association with Sue. Enraged at what he considered to be a friend’s perfidy, he wrote Carmon a letter and left it on his bed. In this missive, he disclosed his awareness of accused’s relationship with Sue; that accused had used his automobile to facilitate his courtship; accused him of damaging the vehicle; and made plain his intention to even the score. Inter alia, he declared: [105] . . Well, you can bet your life that you will pay for this mistake . . . you are the one who is coming out on the short end . . . you have had the course . . . You might ought to pick a buddy who is going to be a little easier on you . . . I don’t give a . . . where it is, if I ever see you off base, I’m going to kick your . . . from one end to the other. Take that the way you prefer.” From that time until the day of their final, and fatal, encounter, Witherspoon harassed and threatened the accused. Testimony of various witnesses indicates that he once assaulted Carmon in his bed; on another occasion, he beat him up in the presence of others; and, on a third, he produced a knife and told accused he was going to cut him with it. At still another time, he broke a soft drink bottle in accused’s presence and indicated it would serve handily to slash him. Repeatedly, he informed Carmon that he intended to kill him as soon as the opportunity presented itself. According to accused, he became alarmed, and brought a pistol to the base from his home in order to protect himself and to use for hunting. On the evening of February 8, 1962, Sue picked up accused at his station in her car. Accompanied by an Airman Moran, they left the base. Accused, armed with his pistol, was driving the vehicle. The party proceeded to a drive-in restaurant, where they obtained something to eat. Witherspoon appeared and began to circle the restaurant in his automobile. Apparently, he observed accused kiss Sue and became violently upset. When Carmon, Sue, and Moran drove off, he followed them. Their route led through a Fort Worth park. Witherspoon pulled his car alongside that driven' by accused, attempted several times to force him from the road, and shouted obscene threats and imprecations. In the park, he finally passed them at a high rate of speed, cut back in front of their car, and forced them to halt. At almost the same instant, he leaped from his vehicle, shouted that it was the accused’s “last night,” and that he was going to beat him to death. Witherspoon wrenched open the door to Sue’s car so violently that its lock plunger was broken. Although Carmon moved over against the other passengers on the front seat and attempted to keep Witherspoon from hitting him or dragging him from the automobile, the latter pulled him from the vehicle, striking him several times. In the struggle, the pocket and button of accused’s shirt were torn away. Accused’s arm was scratched, and, according to his testimony, one of the blows was so hard that he believed Witherspoon had something in his hand. As he was being struck, accused produced his pistol, a single action .22 caliber revolver, and struck Wither-spoon on the neck with its barrel. Car-mon testified that 'Witherspoon then let him go, but immediately lunged forward again. At this point, he cocked the weapon and fired. Witherspoon fell to the ground, and accused reentered Sue’s car. Moran jumped out, and the others left. Utilizing the victim’s car, Moran transported him to the hospital, where he was pronounced dead. Accused was apprehended by civil authorities on the same evening at his barracks. The law officer instructed the court-martial at length on the doctrine of self-defense. The following advice was included: “With reference to the question of self-defense, which has been put in issue by the evidence, you are advised that the accused is excused for killing in self-defense if he believes on reasonable ground that the killing was necessary to save his own life or to prevent great bodily harm to himself. To be excused in killing in self-defense, a person must have believed on reasonable grounds that the danger of being killed himself or of receiving great bodily harm was imminent, and no necessity will exist until the person, if he is not in his own house or at a place where he has a duty to remain, has retreated as far as he safely can. Further, to avail himself of the right of self-defense, [106] the person must not have been the aggressor or intentionally provoked the altercation with the victim, but, if after provoking a fight, the person withdraws in good faith and his adversary follows and renews the fight, he is no longer the aggressor and may avail himself of the right of self-defense.” It cannot be gainsaid that there is in this record “some evidence” tending reasonably to place in issue the affirmative defense of self-defense. United States v Ginn, 1 USCMA 453, 4 CMR 45; United States v Black, 12 USCMA 571, 31 CMR 157; United States v Smith, 13 USCMA 471, 33 CMR 3. The Government’s argument to the contrary is no more than an invitation “to apply the law ... to the evidence before us and resolve all factual issues in the case against the accused.” United States v Black, supra, at page 575. We decline to do so. The record makes crystal clear the victim’s threats, his prior assaults upon the accused, his announced determination to beat him to death, with concomitant acts tending toward execution of that final expression of his purpose. The only real question presented by this record is whether the accused’s reaction to the situation constituted an excessive use of force. This was a question of fact, which was required to be submitted to the court members under proper instructions. United States v Black, supra; United States v Smith, supra. It is equally apparent that the advice to the court concerning self-defense— quoted in part above — was prejudicially erroneous in that it predicated the propriety of accused’s use of a deadly weapon upon his having “retreated as far as he safely can.” This instruction is identical to that which we condemned in United States v Smith, supra; United States v Hayden, 13 USCMA 497, 33 CMR 29; United States v Green, 13 USCMA 545, 33 CMR 77; and United States v Hubbard, 13 USCMA 652, 33 CMR 184. As we stated in those cases, failure to retreat is not “categorical proof of guilt, but is a circumstance to be considered with all the others in or-der to determine whether an accused went further than he was justified in doing.” United States v Hubbard, supra, at page 656. Reversal is, therefore, required. The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force. A rehearing may be ordered. Judge HildaY concurs.