concurring in part and dissenting in part:
I am in partial agreement with my fellow judges’ recitation of the facts in Part I of the lead opinion, and I concur in their resolution of the issue in Part II concerning the admissibility of appellant’s confession that he stabbed the decedent, albeit in claimed self-defense. I must, however, respectfully dissent from their legal conclusion in Part III that the evidence of record is legally and factually sufficient to warrant affirming the guilty finding of unpremeditated murder. I am convinced that a mitigating factor, action in the heat of sudden passion caused by adequate provocation, existed in this case and that its legal effect is to require us to affirm a guilty finding of voluntary manslaughter rather than unpremeditated murder.
The only direct evidence of appellant’s involvement in the death of Mr. Kreiz is that contained in his admission to law enforcement authorities that he stabbed the decedent while both were involved in a violent confrontation, with the decedent beating him about the head and face, and that his sole purpose was to deter the decedent from assaulting him further. The forensic evidence in the case, that is, the location of the wounds on the decedent’s left side and back and the presence of significant amounts of the decedent’s blood on the right front portion of appellant’s clothing, is entirely consistent with appellant’s version of the encounter asserting that the decedent was beating appellant at the time that appellant stabbed him.
This court had occasion to address the legal distinction between the offenses of murder and manslaughter in United States v. Calley, 46 C.M.R. 1131, 1973 WL 14570 (A.C.M.R.1973), aff'd, 48 C.M.R. 19, 1973 WL 14894 (C.M.A.1973). In that case, this court held that, “Malice is still the proper term for describing that state of mind which distinguishes murder from manslaughter.” Id. at 1175. The court went on to explain that,
[Mjurder is the starting point for evaluating the degree of criminality of an intended killing done without justification or excuse. The degree may be induced to manslaughter given certain circumstances ____ Fundamentally, unmitigated intent to kill is the malice. This is why ... reduction of intended killing from murder to voluntary manslaughter must be based on objectively adequate provoca-tion____ Only after some evidence of adequate provocation is presented is the Government faced with bearing the burden of proof that the more serious offense of murder was committed.
To be legally adequate, the provocation must be of a quality which would ‘excite uncontrollable passion in the mind of a reasonable man.’
Id. at 1176 (citing para. 198, Manual for Courts-Martial, United States, 1969). (Emphasis in text). These declarations of the black-letter law of homicide, although more than two decades old, remain the controlling precedent on this issue. See also MCM, Part IV, para. 44c(l). Whether an unlawful killing constitutes murder or a lesser offense depends upon the circumstances. Id. para. 43c(l).
As stated above, the only specific evidence of record concerning the fatal stabbing of Mr. Kreiz is that contained in appellant’s admissions to German and American law enforcement authorities. In his statement, appellant maintained that he stabbed the decedent while he and appellant were engaged in a violent physical altercation in which Mr. Kreiz had the upper hand. He further described his fear of great bodily harm. “Heat of passion may be produced by fear as well as rage.” United States v. Bellamy, 36 C.M.R. 115, 118, 1966 WL 4428 (C.M.A.1966)(citing United States v. Desroe, 21 C.M.R. 3, 1956 WL 4544 (C.M.A.1956)); MCM, Part IV, para. 44e(l)(a). Whether appellant’s arguably self-serving statement is accepted as true or not, it did constitute “some evidence of adequate provocation” on the part of Mr. Kreiz. Some evidence having thus been presented, the burden then fell upon the Government to disprove the existence of the mitigating factor (action in the heat of sudden passion). Calley, 46 C.M.R. at 1175. Government counsel offered no evidence in rebuttal to the appellant’s claims. For example, there was no evidence intro*622duced (1) that appellant suffered little or no injury to his facial or head area, or (2) that appellant threatened to kill or injure Mr. Kreiz before striking him, or (3) if Mr. Kreiz did provoke the physical confrontation with appellant, that the provocation was insufficient to excite uncontrollable sudden passion in a reasonable person. Under the set of facts presented in this case, I would find that although the appellant is not entitled to complete exoneration based on his claim of self-defense because he utilized excessive force (a knife) in resisting the force being applied to his body (with fists), see United States v. Martinez, 40 M.J. 426 (C.M.A.1994), he was acting in the heat of sudden passion caused by adequate provocation.
I reach the conclusion that the mitigating factor existed based on the following facts established by the evidence of record: (1) Mr. Kreiz, the decedent, was aggressive at the taxi stand and continued to be aggressive as evidenced by his chasing Krakowiki and appellant when they attempted to retreat. (2) Mr. Kreiz’s actions were substantially provoking, amounting to more than mere insulting language or a push with the flat of the hand; rather, he ran several hundred yards in pursuit of his perceived adversaries, and he did so over the protestations of his mother and his friends. (3) The rapid sequence of events provided no cooling off period between Mr. Kreiz’s provocation and appellant’s reaction thereto. (4) As stipulated by the government, Mr. Kreiz was physically much larger than appellant — appellant was five feet five inches tall and weighed 117 pounds whereas the decedent was five feet ten inches tall and weighed 154 pounds. (5) As evidenced by the autopsy chemical tests, Mr. Kreiz was significantly intoxicated by alcohol and, perhaps, hashish. (6) Mr. Kreiz had previously been arrested for the crime of assault. (7) The testimony of several witnesses that appellant possessed the character trait of peacefulness. (8) The fact that appellant stabbed Mr. Massaro while Massaro was assisting Mr. Kreiz out of the alley and kicked the decedent later while Mr. Kreiz was lying mortally wounded on the ground in front of the bahnhof, at both of which times appellant was no longer in any danger of physical harm, further indicates appellant’s lack of ability to think rationally and to coolly reflect on his actions. Facts (1), (2), (4), (5), (6), and (7) go directly to the issue of adequate provocation. Facts (3), (4), (7) and (8) serve to establish actions based on uncontrollable sudden passion.
Although action in the heat of sudden passion caused by adequate provocation does not excuse a homicide, it does preclude conviction of murder. MCM, Part IV, para. 44c(l)(a). As a matter of law, a homicide committed in the heat of sudden passion is manslaughter, not murder. See United States v. Saulsberry, 43 M.J. 649 (Army Ct. Crim.App.1995). It is important to keep in mind that the elements of voluntary manslaughter under Article 119(a), UCMJ, are identical to the elements of unpremeditated murder under Article 118(2), UCMJ, the only distinction being the existence, vel non, of the mitigating factor of action in the heat of sudden passion. Compare MCM, paras. 43b(2) and 44b(l). “Sudden passion means a degree of rage, pain, or fear which prevents cool reflection.” Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook, para. 3-43-ld (30 Sep. 1996).
A claim of self-defense is not always an all- or-nothing proposition. Clearly, under a factual scenario such as exists in this case, manslaughter represents a middle ground between intentional malicious killing (murder) and legally excusable homicide (killing in self-defense). See Stevenson v. United States, 162 U.S. 313, 322, 16 S.Ct. 839, 842, 40 L.Ed. 980 (1896). On this point, I must part company with my fellow judges. Applying the law that I believe is controlling in this ease, I would affirm only so much of the finding of guilty of the Specification of Charge I as finds that appellant unlawfully killed Thomas Kreiz in the heat of sudden passion caused by adequate provocation in violation of Article 119(a), UCMJ. I would affirm the remaining findings of guilty and order a rehearing on sentence.