United States v. Darisse

Opinion of the Court Quinn, Chief Judge: This is an appeal from a conviction by a special court-martial for wrongfully and willfully discharging a revolver under circumstances as to endanger human life, in violation of Article 134, Uniform Code of Military Justice, 10 USC 934. The accused contends he was prejudiced by an alleged' deficiency in the instructions on the lesser offense of careless discharge of a firearm. .At trial, substantial evidence was presented from which it could be concluded beyond a reasonable doubt that, while posted as a guard in an area in which loaded aircraft tankers were in an alert status, the accused, contrary to specific instructions, drew his revolver and deliberately fired a shot. It whs stipulated the circumstances were such that the shot could have endangered human life. See United States v Potter, 15 USCMA 271, 35 CMR 243. [30] In defense, the accused testified he drew the gun from his holster, and began “to fidget and play with it.” He admitted the weapon discharged, but he maintained he was trying to “holster” it when it went off. He said he did not “remember cocking the weapon” and “it seemed like . . . [he] hadn’t even touched the trigger.” Apparently, the instructions were prepared by trial counsel, and were submitted to defense counsel for his inspection before they were tendered to the president of the court. Defense counsel advised the president he had “no objections to these instructions” and had “no additional instructions to offer.” After the president orally gave the instructions to the court members, defense counsel again indicated he had “no objections or additional instructions.” In material part, the instructions apprised the court members of the elements of the offense charged and advised them that the term “ ‘willfully’ ” meant “intentionally, knowingly, and purposely, as distinguished from . . . carelessly, thoughtlessly or inadvertently.” The members were also instructed that included within the offense charged was the lesser offense of “discharge of a firearm through carelessness.” The elements of this offense were separately stated and included the following: “That the discharge ... [of the revolver] was caused by the carelessness of the accused.” The term “carelessness” was not specially defined. The accused now contends the absence of further definition left the court members without adequate guidelines to determine intelligently whether he had committed the lesser offense. See United States v Smith, 13 UCMA 471, 474, 33 CMR 3. Essentially, the accused’s argument consists of equating the word “carelessness” with the word “negligence.” See Black’s Law Dictionary, 4th ed, page 268. With the equation established, he contends that negligence must be defined if the triers of the facts are to know the standard of care the law demands of the individual as a condition to liability; therefore, “carelessness” must be similarly defined. See A-F Corporation v Caporaletti, 240 F2d 53 (CA DC Cir) (1957); cf. United States v Ritcheson, 3 CMR 759. Negligence is indeed a synonym for carelessness, but the two are not necessarily equivalents in common understanding. In some circumstances, negligence may perhaps have an overlay of technical legal significance, but carelessness does not. It is a word “readily understood by men of ordinary intelligence.” State v Hayes, 244 Minn 296, 70 NW2d 110, 113 (1955). It is a commonplace word of common understanding that is not susceptible of different meanings in different situations. See Byas v United States, 182 F2d 94, 96 (CA DC Cir) (1950). As early as United States v Shepard, 1 USCMA 487, 492, 4 CMR 79, we held that words “generally known and in universal use do not need judicial definition.” In the absence of a defense request for further definition, we have consistently refused to strike down instructions that do not define a word of common usage and common understanding. United States v Eagleson, 3 USCMA 685, 689, 14 CMR 103; United States v McDonald, 6 USCMA 575, 20 CMR 291; see also United States v Kloh, 10 USCMA 329, 27 CMR 403, opinion by Judge Ferguson. Civilian courts have followed the same course in similar situations. Byas v United States, supra; Thompson v United States, 272 F2d 919 (CA 5th Cir) (1959). As we have already noted, there was no request, by qualified counsel, for an additional explanation of the meaning of “carelessness.” The instructions given differentiated clearly between the willfulness required for a finding of guilty of the offense charged, and the “carelessness” required for a finding of guilty of the lesser offense. We are satisfied that the offense charged and the lesser offense were presented to the court members in meaningful terms. The decision of the board of review is affirmed. Judge Kilday concurs.