United States v. Mungo

BROSMAN, Judge

(concurring) :

I concur fully in the opinion and disposition of the majority. This memorandum is added for the sole purpose of distinguishing the present case from others in which I have felt that the testimony of an accused person operated to raise issues of lesser offenses or. of excusable or justifiable homicide. Here I need' go no further than to. say that in my view the record requires that the -accused’s story be regarded as -improbable inherently. Not only is it contravened by much compelling evidence, including the explicit testimony of numerous .eye-witnesses,, but by the physical *20facts as well. We have here, I think, an even stronger case against the necessity for instruction on such issues than was present in United States v. Benavides (No. 876), 2 USCMA 226, 8 CMR 26, decided February 20, 1963, in which a full Court affirmed in their absence.

Certainly, too, no evidence raises any sort of legal basis for demanding an instruction on voluntary manslaughter. Additionally — and conceding intoxication — we have recently held that voluntary drunkenness, in and of itself, will not serve to reduce premeditated murder, in violation of the Uniform Code, Article 118, below the level of the unpremeditated offense. United States v. Craig (No. 1249), 2 USCMA —, 10 CMR —, decided June 24, 1953. See also United States v. Roman (No. 191), 1 USCMA 244, 2 CMR 150, decided March 19, 1952.