(concurring in part and dissenting in part):
I concur in the holding that the instructions of the law officer with respect to the charge of assault with a deadly weapon with intent to do bodily harm were defective, and require af-firmance of the lesser offense of assault with a' deadly weapon. This is entirely consistent with previous decisions of this Court in the area of instructions, and is likewise conformable to our disposition of such cases as United States v. Hunter (No. 359), 6 CMR 349, decided October 17, 1952, and United States v. Baguex (No. 699), 8 CMR 106, decided March 13, 1953. However, much is said in the majority opinion of which I cannot approve, and which I hesitate to let pass without comment. I shall advert specifically to those matters only with which I am most out of agreement. I am sure that the precise basis for my dissent will be apparent, as will its necessary bearing on my brothers’ disposition of the case.
I cannot at all agree that the terms “malice aforethought” and “premeditation” are self-defining and easily understood in their full legal sense by persons not trained in- the law. They are indeed terms of art to which has become attached a considerable ideal accretion. In a general sense — perhaps in rough essence — “premeditation” may mean the *428same to lawyer and layman alike, but in technical detail this cannot be true. And what the term “malice aforethought” must mean to the average juror-in-the-street, I cannot possibly imagine! This is not to say, however, that I believe the law officer here erred in failing to define these terms — in the absence of a request by defense counsel to do so. We have held that the burden of requesting clarification of instructions, given substantially in terms of the applicable Manual subparagraph, rests on defense counsel. United States v. Soukup (No. 533), 7 CMR 17, decided January 23, 1953; see also my concurring opinion in United States v. Cobb (No. 1240), 8 CMR 139, decided March 24, 1953. So here, the instructions of the law officer as to the premeditated offense charged — phrased as they were in the language of the Manual — did state the elements of the offense in substance, and the burden rested on the defense to request elaboration or clarification. Having failed to meet this obligation, the law officer’s instructions were not — in this particular — tainted with error.
I am sure that — properly understood —there is nothing said here which is inconsistent with previous decisions of this Court, or with prior separate opinions of my own. What I am seeking to do is to effect a proper balance between a position, on the one hand, which places the sole burden of protecting the interests of the accused on defense counsel, and with which I have disagreed frequently in the past, and, on the other, with a view suggesting that defense counsel is wholly without responsibility. This is what I believe the Code and Manual have sought to do, and this is what this Court has attempted to do in its approach to instructional clarification and elaboration.
In this connection I must also expressly dissociate myself from the unnecessary, perhaps, misleading, admonition of the majority that, “The sooner defense counsel defend properly the rights of the accused the sooner will we have good administration.” This gratuitous attack on the good offices and efforts of those young officers appointed to defend military accused persons seems virtually to place the principal burden of effective military law administration on the shoulders of defense counsel. That is not at all where it belongs. Unless I wholly misunderstand the Code and the Manual, it is the lato officer who has the primary duty of insuring a proper, fair, safe, and orderly procedure in trials by court-martial.
Reference is also made by my brothers to the fact that both trial and defense counsel read to the court from legal extracts defining “premeditation”. Heretofore we have indicated clearly that such action — taken by properly and necessarily partisan functionaries of the court — cannot serve to correct or complete an erroneous instruction by a law officer. United States v. Johnson (No. 498), 4 CMR 128, decided August 7, 1952. It is the law officer’s duty to furnish required instructions, and that duty is in no sense performed by delegation, express or implied, to other— and necessarily less responsible — persons participating in the trial. Consequently, had the law officer here been under an independent duty to define “malice aforethought” and “premeditation”, his failure to do so could not properly have been regarded as cured by comments of counsel during arguments.
Further, I cannot assent to the disposition of the problem of instruction on the lesser included offense of unpremeditated murder. As I read their opinion, the majority appears to hold that the showing of intoxication in the instant case was sufficient to raise an issue as to the possibility that accused did not entertain a specific intent to kill. They could hardly have concluded otherwise, for the record is replete with evidence that, at the time of the alleged offense, he was highly intoxicated. Examining the matter of lesser included offenses, they say that the only one fairly raised by the evidence of intoxication was that of unpremeditated murder. With this observation, I have no possible quarrel. However, my brothers proceed to the conclusion that instructions were in fact given as to unpremeditated murder “for all prac*429tical purposes.” At this juncture we come to a sharp parting of the ways.
They suggest that the only difference between premeditated murder and unpremeditated murder is to be found in the element of premeditation. This is probably true under the Articles of War and the 1949 Manual, in force at the time the transactions with which we are here concerned. took place. However, it should be noted that this is not the sole difference between the two offenses under the Uniform Code and the current Manual — for under these sources one may be guilty of unpremeditated murder without an intent to kill, if his act causing the death of another was “inherently dangerous” and evinced “a wanton disregard of human life.” Uniform Code of Military Justice, Article 118 (3), 50 USC § 712. However, granting for the purposes of the present case that the presence or absence of premeditation is the only difference between premeditated and unpremeditated murder, my colleagues proceed to opine that, “The question is, however, was the court-martial aware of the difference and did the members know they could return a verdict of guilty of the lesser offense?” Although there may be exceptional cases which I need not and do not now prejudge, this is indeed a novel — if not a shocking — approach to instructional deficiency of the sort asserted here, and in a capital case into the bargain. Apparently, my brothers wish to approach all instructional problems through the spectacles of sheer speculation as to whether the members of the court-martial in fact knew and fully comprehended what the law officer would have said to them had he said anything at all. This belies what rests at the very heart of the requirement that the court be instructed, and that the instructions given at the trial be spread upon the record. As I understand it, the codal notion here is- that only by requiring that instructions be given can reviewing authorities be certain — in all cases — that the court did have presented to it, fully, properly and accurately, the correct legal markers to guide its decision. It must not be left out of account that no longer does a law member sit with a court-martial to advise it on legal matters step by step during its deliberations, I must indeed refuse consciously to be a party to such a whittling away of the direct commands of the Code and Manual relating to instructions. This case constitutes but a further instance in what appears to be a series of recent steps — retrogressive ones, I am sure — away from our early, sound and strong position in the sphere of instructions. United States v. Clay (No. 49), 1 CMR 74, decided November 27, 1951.
With this brand-new carpet extended before them, it is not difficult for my brothers to march swiftly to the goal they seem so strongly bent on reaching. The law officer said: (1) that unpremeditated murder was a lesser offense included within premeditated murder— although he did not expand on this simple statement; (2) he read to the court portions of the Manual setting out the possible effect of intoxication on specific intent and premeditation; and (3) he went on to state that if doubt existed as to the degree of guilt, the finding must be in a lower degree as to which there was no doubt. I must concede that this all sounds impressive — ever so sensible and reasonable. However, there is one modest flaw. The Code and the Manual say — and this Court has heretofore repeatedly held — that the law officer must instruct the court on the. elements of the offense charged and as to lesser offenses fairly raised as reasonable alternatives to that charged. United State v. Clark (No. 190), 2 CMR 107, decided February 29, 1952; United States v. Roman (No. 191), 2 CMR 150, decided March 19, 1952; United States v. Banks (No. 382), 4 CMR 71, decided July 24, 1952; United States v. Stout (No. 497), 5 CMR 67, decided August 27, 1952; and United States v. Baguex, supra. That just was not done here! And .this failure constitutes clear prejudicial error — as any student of the opinions of this Court would reasonably expect. Let me make my position clear. I simply refuse to agree with the completely untenable notion that within each proper instruction on premeditated murder there is included an adequate instruction on the unpremeditated offense.
*430To compound the- error in their resolution of the instructional question, my brothers again point with assurance to the arguments of counsel and conclude therefrom that “all parties at the trial level understood” the difference between premeditated and unpremeditated murder. I cannot avoid regarding this ap-approach as overruling sub silentio United States v. Johnson, supra.
There are numerous other matters raised by the majority which trouble me —but they are of less importance in the totality of our decisional fabric, and I shall omit specific reference to them.