To raise the “accident” defense, the act resulting in the loss, death or injury must have been the result of doing a lawful act in a lawful manner. R.C.M. 916(f). The defense of accident excuses a lawful act, in a lawful manner, which causes an unintentional and unexpected result. United States v. Marbury, 50 M.J. 526 (Army Ct. Crim. App. 1999), aff’d 56 M.J. 12 (C.A.A.F. 2001). In Marbury the Military Court found that a defendant cannot raise the “accident” defense where she acting unreasonably in brandishing a knife to try to coerce a trespasser to leave her room.
For an act that resulted in loss to be an “accident,” the ensuing loss must be an unanticipated result of the act, and there must have been no negligent behavior. In United States v. Moyler, 47 C.M.R. 82, 85 (A.C.M.R. 1973), the Court determined that an “accident” does not exist where the defendant carried a gun with the safety off and the selector on automatic. The defendant’s behavior was deliberate and negligent, and the resulting injury was not an unexpected consequence.
The lawful act
If the accident happens during the commission of an unlawful act and the unlawful act was the proximate cause of the loss, then the accident defense is not available. In United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954), the defendant accidentally discharged a gun that he possessed in violation of the law, resulting in death. The Military Court concluded that the “accident” defense was no available because the defendant’s carried it in violation of a local ordinance. In United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972), the Court made it clear that an accident instruction could be denied only if the illegal act was the proximate cause of the injury or loss.
The accident defense cannot be raised where an act is specifically directed and intended at a person, but the ultimate consequence of the act was an injury or loss that was not intended. In United States v. McMonagle, 38 M.J. 53 (C.M.A. 1993),Library of Congress: Military Law the Military Court held that in a case where the defendant randomly fired his weapon in a sham firefight in an inhabited area, it was clear that death or injury was the probable consequence, even if not intended, the “accident” defense was not available. In United States v. Femmer, 34 C.M.R. 138 (C.M.A. 1964) the Court determined that the “accident” defense was not available where the defendant had a razor blade in his hand when he tried to push the victim away from him. That the victim was injured was an expected consequence of the defendant’s actions. In United States v. Pemberton, 36 C.M.R. 239 (C.M.A. 1968), the Court concluded that where the victim was injured while struggling with the defendant over a broken beer bottle, the accident defense was available since the defendant’s act was not directed toward the victim, but at wrestling the bottle from the victim.
A defendant may not raise the defense of accident when the act that caused the loss or injury was negligent.
United States v. Sandoval, 15 C.M.R. 61 (C.M.A. 1954).
The Court held that the defense of accident was not available in a homicide case where the defendant unintentionally killed the victim when he negligently pushed open a door with a loaded gun.
United States v. Redding, 34 C.M.R. 22 (C.M.A. 1963).
The Court found that even though the defendant did not intentionally injure the victim, the accident defense as not available as the defendant was negligent in participating in a game of “quick draw.”
United States v. Moyler, 47 C.M.R. 82 (A.C.M.R. 1973).
The Court determined that an accident does not exist where the defendant negligently carried a gun with the safety off and the selector on automatic.
United States v. Leach, 22 M.J. 738 (N.M.C.M.R. 1986).
The Court found that the accident defense was not available where the defendant negligently swung a knife near the victim.
United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000).
The Court concluded that there was no “accident” defense where the defendant was negligent in failing to properly secure his daughter in her car seat.
United States v. Ferguson, 15 M.J. 12 (C.M.A. 1983).
The Court held that the defendant was negligent in waving a loaded shotgun without ensuring that the safety was in place.
A defendant may not be able to raise an accident defense where the defendant was negligent while acting in self-defense. In United States v. Lett, 9 M.J. 602 (A.F.C.M.R. 1980), the Court determined that the defendant was negligent in using a switchblade as a means of self-defense. On the other hand, in United States v. Taliau, 7 M.J. 845 (A.C.M.R. 1979) the Court found that the defendant’s use of self-defense was lawful, even though an innocent third party was unintentionally injured.
Assault by Culpable Negligence
The fact that a defendant acted in such a way that the defense of accident is not available does not mean that the defendant necessarily committed assault.