UNITED STATES, Appellee v. JERRY L. HENRY, Sergeant, U. S. Air Force, Appellant

UNITED STATES, Appellee v JERRY L. HENRY, Sergeant, U. S. Air Force, Appellant No. 30,492 August 29, 1975 Colonel William E. Cordingly and Major Bruce R. Houston were on the pleadings for Appellant, Accused. Colonel C. F. Bennett and Captain Alvin E. Schlechter were on the pleadings for Appellee, United States. [MAJORITY — Per Curiam:] OPINION OF THE COURT Per Curiam: The appellant stands convicted by general court-martial before members of assault with the intent to commit voluntary manslaughter in violation of Article 134, Uniform Code of Military Justice, 10 USC §934. We granted review to determine whether the military judge’s instructions to the court on that offense were prejudicially erroneous. When setting forth the various elements of assault with intent to commit voluntary manslaughter, including the necessity to find that the appellant intended to commit voluntary manslaughter, the military judge defined voluntary manslaughter in a manner which allowed the court to find the appellant guilty if he intended either to kill the victim or to inflict great bodily harm. This instruction was erroneous because only an intent to kill will suffice. United States v Pitts, 12 USCMA 634, 31 CMR 220 (1962). See United States v Malone, 4 USCMA 471, 16 CMR 45 (1954). The decision of the United States Air Force Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered. The appellant was charged with an assault with the intent to commit murder but was found guilty of only the lesser included offense.