(dissenting):
I dissent.
We have consistently held that instructions relative to a specific intent must be limited to the particular intent charged, and that the failure to tailor the instructions to fit the intent charged constitutes error. United States v. Russell L. Williams, 1 USCMA 186, 2 CMR 92, decided February 21, 1952; United States v. Hemp, 1 USCMA 280, 8 CMR 14, decided April 8, 1952; United States v. Jenkins, 1 USCMA 329, 3 CMR 63, decided April 21, 1952. This error does not require reversal, however, unless it can fairly be said that reasonable men would be misled by the instructions. The norm by which we shall test for prejudice is “whether the facts, as brought out at the trial, point so clearly to only one type of intent that it is not possible to believe that the court could have premised its findings of guilt on any type other than that charged.” United States v. Jack G. Johnson, 1 USCMA 536, 4 CMR 128, decided August 7, 1952. See also United States v. Jenkins, supra; United States v. Moynihan, 1 USCMA 333, 3 CMR 67, decided April 21, 1952; United States v. Boone, 1 USCMA 381, 3 CMR 115, decided May 9, 1952; United States v. Cooke, 1 USCMA 421, 4 CMR 13, decided June 3, 1952; United States v. Justice, 1 USCMA 643, 5 CMR 71, decided August 28, 1952.
In United States v. Jenkins, supra, a unanimous court placed its stamp of approval upon the following basis for this view:
“While we desire to protect adequately the rights of an accused, we can not found prejudice on every inaccuracy in instructions. Technical errors and minor inaccuracies will creep into the trial of law suits and appellate courts can not administer justice fairly by failing to appreciate that the trial of criminal cases is a practical business, which can not be carried on with perfection. The best we can do is to place our stamp of disapproval on the error and then affirm only those cases where the irregularity does not touch the merits of the findings.”
In that opinion, the analogy of evidence placed upon a scale to determine whether prejudice was present was adopted in the following language:
“. . . . This whole proceeding is weighted so overwhelmingly with evidence indicating an intent to avoid hazardous duty that a reasonable mind would have to ignore one side of the scale which was heavily loaded to choose the other which held barely a scintilla. Our understanding of human behavior leads us to believe that when the scales are so obviously out of balance reasonable minds would not be confused or misled as to which intent could be inferred from the facts.”
Again in United States v. Moynihan, supra, this Court unanimously declared:
“It is not reasonable to conclude that, when you have a mountain of evidence on one side from which an inference of one intent is compelled, *377and a molehill on the other from which a different intent might be inferred, the members of a court-martial would miss the mountain and see the molehill. . .
Although in the cases cited we were concerned exclusively with the offense of desertion, I am convinced that the principles therein enunciated are equally applicable to other instances involving multiple intents. To adopt another rule solely because the offense involved is different is illogical, inconsistent, unrealistic, and altogether out of keeping with plain common sense.
Applying the foregoing principles to the instant case, I agree that the all-inclusive nature of the law officer’s instructions constituted error. This •conclusion is compelled by our décision in United States v. Floyd, 2 USCMA 183, 7 CMR 59, decided February 12, 1953. However, in testing for prejudice, I find a possibility of reasonable men perceiving only two possible intents — premeditated murder, or — because of the evidence of intoxication— unpremeditated murder. Here, as the majority opinion points out, the accused announced his intention of killing his victim, procured the means, and, when only six feet away, commenced firing. He desisted only when his weapon jammed — a circumstance over which he had absolutely no control. Had the death of his victim ensued, a finding of premeditated murder would have followed necessarily, unless the evidence of intoxication justified reduction of the crime to unpremeditated murder. See United States v. Ginn, 1 USCMA 453, 4 CMR 45, decided July 10,1952; United States v. Black, 3 USCMA 57, 11 CMR 57, decided July 10, 1953. Certainly the evidence of intoxication could not reduce the crime below that of unpremeditated murder.
Not even a scintilla of evidence tending to show that this accused was engaged “in an act inherently dangerous to others without any intent to cause the death of, or great bodily harm to, any particular person, or even with a wish that death may not be caused” was before the court-martial. There is not even a shred of evidence which could be tortured by forced or fallacious reasoning into an inference that he was so engaged. To find prejudice to the substantial rights of the accused, it is necessary to conclude that there was a fair possibility that reasonable minds would be confused or misled as to which intent could be inferred from the facts.
Finding no such possibility on the facts of this case, I would affirm the decision of the board of review.