United States Court of Military Appeals
13 U.S.C.M.A. 278 (1962)
Thomas, McClellan (defendants), and another, enlistees in the military, met a female during a “bar hopping” spree and drove her around in McClellan’s vehicle from bar to bar drinking. Later that evening, the female collapsed and the three men decided to take her home. Shortly thereafter, each of the three men did, or attempted to, have sexual intercourse with the female while they believed her to be unconscious in the back seat of the car. However, when the female failed to regain consciousness, they became frightened and drove to a nearby gas station seeking help. A police officer was summoned and, upon his arrival, examined the female only to learn that she was dead. Later, an autopsy confirmed that the female had died earlier in the evening of “acute interstitial myocarditis,” a weakening of the heart muscles. Defendants were charged with conspiracy to commit rape, rape, and lewd and lascivious conduct. At their general court-martial, the third man testified against Thomas and McClellan in exchange for a more lenient sentence. Defendants argued that it was legally impossible to attempt to rape a woman who was deceased. Defendants were acquitted of rape but found guilty of attempted rape and the other charges. Each man was dishonorably discharged and sentenced to three years imprisonment. A military board of review set aside the convictions of attempted rape and conspiracy and modified the lewd and lascivious convictions. The matter was reviewed by the U.S. Court of Appeals for the Armed Forces.
Rule of Law
Holding and Reasoning (Kilday, J.)
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