(dissenting):
I agree that the law officer' of a general court-martial has a duty to instruct the court on the elements of the offense charged, and on those included offenses which are supported by the evidence and which are issues in the case. The federal courts and most of the states have long adhered to this rule. Stevenson v. United States, 162 US 313, 40 L ed 980, 16 S Ct 839; Williams v. United States, 131 F2d 21, (CA DC Cir); see state cases collected at 41 CJS, Homicide, section 389. The clearly expressed legislative intent to bring court-martial procedure into accord with that prevailing in civilian criminal courts is persuasive that Congress, by Article 51(c) of the Uniform Code of Military Justice, 50 USC § 626, made this rule applicable to military courts-martial.
There is a qualification to this general rule which, although implicit in the majority opinion, should be. made clear beyond peradventure. The rule does not require that the law officer always instruct on every.lesser included offense. Thus, if the charge is murder, and all elements of the offense are clearly established, and not contradicted by a defense theory or evidence in support thereof, no one would contend that an instruction on simple assault should be given. This even though the evidence would necessarily establish commission of simple assault along with other included offenses. There must be some*207thing other than “evidence to support” the included crime. The law officer should instruct on those included offenses which are, measured by the evidence, reasonable alternatives to the specific offense charged. Implied is the caveat that doubts should be resolved in favor of the accused.
Accordingly, I have some doubt whether the law officer was required to instruct on negligent homicide on the evidence in this case. But this I need not decide. Assuming that his failure to do so was error, I fail to find prejudice within the meaning of Article 59 (a) of the Code, 50 USC § 634. First, the law officer mentioned the offense of negligent homicide. The name of the crime supplies its own definition — an unlawful killing coupled with simple negligence. It is difficult to say that this court did not have available for its deliberation a legal standard of guilt for this offense. Second, the evidence here, in my judgment, would reasonably support a finding of culpable negligence and involuntary manslaughter. While intoxicated, petitioner pointed at other human beings a loaded machine-gun which, by its yery construction, was dangerous and easily discharged. This being so, he was not prejudiced by a failure to instruct on the considerably less serious offense of negligent homicide of which he was found guilty.
I would uphold the findings and sentence. The government should not be required to try again this individual, clearly guilty, because of a possible error which in no way harmed him.