(dissenting):
The majority has chosen to rule that, under the facts of the case at bar, the law officer erred in failing to instruct on the elements of the lesser offense of simple assault. I do not at all agree that any such instruction was required by the evidence contained in the record of trial in this case. Of course, I have no quarrel whatever with my brothers’ law in this respect. However, I disagree so vehemently with their interpretation of the facts that I am constrained to file this memorandum of dissent.
At its foundation, the majority opinion takes the position that because the victim of the alleged robbery testified that accused struck him “all over the body,” there was a possibility that, if accused had not been engaged in robbery, he had. used more force than was reasonably necessary to break the driver’s painful grasp on his wounded arm — suggested' as the reason for the striking. This conclusion is — I submit —based on a distorted version of the true facts contained in the record. I take issue with the majority’s unampli-fied representation that the victim received “emergency treatment.” What actually happened was that he was “treated” at a corner drugstore. For an account of the nature and extent of the driver’s injuries, I prefer to take the testimony of the doctor who examined him at the instance of the military authorities only a little later, and who testified as follows:
“Q. At the time you first saw him was he bandaged in any way?
“A. He was not.
“Q. Was he injured in any way?
“A. His left eye was hit and was swollen, and the left side of his neck had a streak of blood clot under the skin, not above the skin.
“Q. Did these injuries appear to you to be serious?
“A. I thought it was light. Well, I would say it was light.
“Q. Would you say that he needed medical attention at the time you saw him ?
“A. As far as a doctor’s treatment is concerned, I don’t think it was necessary; just a bandage to cool his eye; I thought that was enough.”
At another point in his testimony, the doctor stated flatly that he was unable to find any bruises on the driver’s body. I,have concluded from my own examination of the record, that the accused’s victim was very slightly injured indeed. He had suffered no more than a lightly bruised jaw and what is popularly referred to as a “black eye.”
In truth, however, the extent of the driver’s injuries is not of itself the proper test — for the reason that the degree of force the accused would be justified in using to resist must be related directly to the tenacity of his aggressor. In this case, the accused testified that he struck the taxi driver to break the painful grasp of the latter on his injured arm. I should suppose that the practical and proper test here would be whether the accused, using only his hands, continued to beat the driver after he’ had succeeded in breaking his hold. I certainly take it as conceded that so long as the driver maintained his unauthorized grip, the ac*247cused would have warrant to thrust at and to strike him in an attempt to break that hold. There is no evidence whatsoever in the record of this case even remotely suggesting that the accused continued to beat the driver after succeeding in dislodging the latter’s grasp on his arm. Moreover, the trifling character of the injuries inflicted argues that the force used theretofore was not at all excessive. Therefore, I believe that an instruction as to the elements of the lesser offense of simple assault was not necessary in this case, because I perceive no basis for saying that that lesser offense was reasonably raised as an alternative to that charged.
Apart from the suggestion that Cloutier might have been guilty of simple assault through resisting the grasp of the driver with more than necessary force, an alternative theory of possible guilt of this lesser offense seems also somehow to have entered the minds of my colleagues. This theory —as I understand it — is that the law officer should have recognized that the court might disbelieve the driver’s testimony with respect to the robbery, while believing him in so far as he spoke of a mere beating. Joining this with a further portion of accused’s version — namely, that he and his companion had thought the driver overcharged them — the ultimate hypothesis is developed that accused battered the driver because he had overcharged them. I had thought the fallacy of this reasoning to be self-evident, but it appears now that I must spell out my views in greater detail.
We have reiterated time and again— and in case after case — that the law officer is required to instruct on lesser offenses reasonably raised by the evidence as alternatives to the offense charged. I had never suspected heretofore that the term “reasonably raised alternative” was synonymous with “every remotely conceivable alternative.” This suggestion is to me especially shocking in light of our specific admonition in United States v. Roman (No 191), 2 CMR 150, decided March 19, 1952, that unnecessary instructions concerning lesser offenses should be avoided for the reason that they tend only to mislead the court. Assuming that the court concluded that the driver lied about the robbery, I would have serious doubts of the value of his other testimony — perhaps even as to whether it possessed sufficient credibility to provide the basis for a conviction of anything. Although a witness may be disbelieved in minor particulars, when disbelief goes to the very heart of his testimony, we have a quite different problem. His usefulness as a witness is — or should be — completely dissipated —in the absence, of course, of strong corroborative evidence as to remaining particulars.
At first blush the approach under discussion might appear beneficial to accused persons — certainly it might seem to work to the benefit of the present accused. However, I submit that such a course opens to courts-martial far too many attenuated alternatives, making compromise findings of guilt dangerously possible in cases which otherwise would almost certainly result in acquittal. When the Government undertakes a prosecution, it should be restricted to the theory of the offense charged, or to those of lesser offenses reasonably — and I do mean reasonably —raised by the evidence as alternatives. Otherwise the possibility of varying theories of guilt may be so increased that the risk of acquittal in an entirely proper case is seriously impaired. As an example, I submit that in virtually any set of facts, sufficient to serve as the basis for a charge of premeditated murder, differing versions of the facts may be conjured imaginatively which would operate to raise every lesser crime from unpremeditated murder, through both voluntary and involuntary manslaughter, and down to and including simple assault. Those advocating the theory I am here questioning will disclaim any such intention — and, of course, this is quite true. However, some such result will follow almost certainly unless “reasonably raised” is confined to its proper orbit.
In conclusion, I must repeat that the requirement of instructions on simple assault in this case contravenes our ad*248monition in United States v. Roman, supra, that:
“In dealing with the necessity of giving instruction on included offenses it must be borne in mind that the law officer makes the preliminary decision and if there is no testimony to reduce the offense below the degree charged there is no obligation to give any instructions. To do so tends to mislead the court. . . .” [Emphasis supplied]
My brethren appear not to be so concerned over the danger of misleading the court-martial as I. I would affirm the board of review’s decision.