(dissenting):
I dissent.
This decision is contrary to the rule we announced in United States v. Stout, 1 USCMA 639, 5 CMR 67, decided August 27, 1952. In that case we specifically announced that instructions identical to those in the instant case were sufficient when physical incapacity was raised as an issue. We now seek to escape the effect of the language.of that decision by stating it was dicta. Of course, I concede we are free to examine anew or even reverse principles announced in any decision, but consistency has some virtue and we should not overturn previously announced rules of law unless they are clearly wrong.
There are two principal reasons for my dissent. The first is that I do not find the defense of physical disability fairly raised by the evidence. The Court’s opinion, states otherwise but I believe this is the result of not discriminating between evidence of injury and evidence of incapacity. To make my point clear, there is substantial evidence of a physical injury to the palm of accused’s left hand but the evidence does not show that the nature and extent of the injury was such as to render the accused physically unable to comply with the order. It is the latter deficiency which causes me to say that. the testimony favorable to the accused, together with every reasonable inference deducible therefrom, *424does not add up to that quantity and quality of evidence necessary to make an issue.
I liken the defense of physical incapacity to the defense of intoxication. In the former it should be necessary for the accused to show that the extent of the injury was such that he was unable, within reason, to comply. In the latter, the evidence of intoxication must be such that the accused was unable, -within reason, to comprehend. Judge Brosman in United States v. Backley, 2 USCMA 496, 9 CMR 126, decided May 12, 1953, stated the rule with respect to intoxication in the following language:
“. . . Perhaps we should attempt to make even clearer what is in our minds on this subject. This much may be said. Evidence which goes no further than to indicate merely that the accused ‘had been drinking,’ or that he was ‘under the influence of liquor,’ is clearly insufficient to require an unrequested instruction on intoxication. At the far swing of the pendulum, testimony or other evidence suggesting that at the time of the alleged offense the offender was the victim of a temporary drunken frenzy, or in what we once described as ‘a state of ambulatory stupefaction,’ with equal clarity demands such an instruction. These limits, we believe, must be accepted by all. Indeed, it is only the ground between them which is productive of doubt and uncertainty — and perforce of petitions for review by this Court. As to this area, it may suffice to observe that the showing we contemplate as requiring instruction must certainly be one of intoxication — and, moreover, intoxication of a certain degree and sort, characterized by a discernible relationship to the potential absence of a capacity to entertain specific intent. Although intoxication, at least, must be fairly raised, it must be recognized that this condition involves aspects of quality and pitch, and that not every intoxication will necessarily be deemed by us to demand the instructions outlined earlier in this opinion.”
The evidence in this case shows only that accused had suffered an injury in some degree and it seems to fall in a relative grade and sort which, insofar as the case is concerned, can be characterized as less than incapacitating.
This is my resume of the testimony. On March 15, 1952, accused received a powder burn on the palm of his left hand caused by a cartridge case exploding while he was manipulating a machine gun. On the day of the injury he received first aid treatment by a private first class who was substituting for the regular company first aid man. Two days later the regular enlisted aid man treated the wound but he was not concerned about it being serious, let alone disabling, as he • determined first aid treatment was all that was necessary. His treatment consisted of the application of some healing salve. From that date until the date of the offense some six days thereafter, the accused made no complaint about the injury and he carried on his regular duties. Those included cleaning and maintaining his. machine gun and working on his bunker. The latter form of work was the very type of labor he refused to perform when ordered to do so by the sergeant. As a matter of fact, the injury at the time was of so little importance that the corporal of the machine gun squad selected accused for the work detail without knowing he claimed any disability, and the accused departed for the assignment without making any complaint that he was suffering from any injury although at one point he made mention of encountering some difficulty in tieing his shoes. Some four or five days after the date of his refusal to obey accused reported to the medical battalion clearing hospital for treatment of his hand. There he was given hot and cold contrast baths. The doctor who attended him testified, by stipulation, to the effect that the X-ray picture showed no bony pathology and that the blast injury produced subcutaneous hemorrhages in the hand which could not be observed; but that the injury was such as to impair the functions of the hand and the ability to do work requiring precise finger movement.
*425The medical testimony leaves the area of rough manual labor such as tieing and working with sandbags untouched, but it is admitted by the accused, and confirmed by every other witness, that he performed his assigned duties -.as a member of the machine gun squad from the date of the injury until after the time of the offense. He never made any complaint to the corporal in charge of his squad or to the sergeant or anyone else in the company that the condition-of his hand interfered with the performance of his duties. To escape the effect of this testimony accused claims the condition of his hand vacillated and that it was better during the times he did his own work — a rather convenient physical disorder. It was not until some four days after the order was issued that he reported on sick call, and the last time the hand was treated before the offense was committed, the aid man was so little impressed with its seriousness that he applied some salve and told the accused he could throw the bandage away. Likewise the corporal of the squad must have been unimpressed with the severity of the injury as it is unreasonable to conclude that he would send one of his members on a labor detail if he was aware of a physical disability which prevented the performance of the contemplated task. In addition, there was no effort made by the accused to determine whether he could carry out the assigned order. He just took it upon himself to declare he was unfit although on that same date he dismantled and cleaned his machine gun and carried out his other duties. When the testimony, facts, and circumstances are totaled together they merely added up to an excuse seized upon by the accused after the commission of the offense to avoid conviction. Every task could be performed except the one ordered and yet we held a reasonable person could conclude' there was evidence that the accused could not physically perform it. Perhaps the story told by other witnesses that accused, when informed of the nature of the work, stated “he had been working on his own bunker and didn’t see why he should work on the CO’s,” disclosed the real reason for the refusal. Be that as it may, Winthrop in his work on Military Law and Precedents, 2d ed., 1920 Beprint, page 572, announces the principle that nothing short of physical impossibility .will excuse noncompliance.' While I need not go that far, I can assert that a refusal to comply cannot be excused unless the accused is so handicapped that he is reasonably Unable to perform. . No issue arises unless the evidence tends to establish that condition and. here it does not. :
For .purposes of the second part of my dissent, I can concede arguendo that the evidence raised an issue of physical inability to perform. If I concede that, then I must face up to the-question of whether there were instruc-' tional deficiencies. I have concluded there were not for under the instructions given by the law officer, the court-martial was required to pass on every, issue raised by the pleadings and -evidence - including physical incapacity. There cannot be any question concerning the sufficiency of the evidence as the accused admits he was given an order by a person whom he knew to be a superior noncommissioned officer and that he refused to obey. Every essential element of the offense except willful defiance of authority was conceded by him so that unless his claim that he was physically unable to comply with the order is founded in substance he is güilty of the offense. With the evidence in that ■ posture, accused’s defense succeeds or fails on a finding by the court-martial that his refusal was not willful because he was physically unable to comply. Stated a little differently, accused contends he did not -have the right of free choice to comply, or refuse to comply, with the.order because his injury denied him that choice. That was' the narrow issue in the case and I- am of the opinion that any reasonable member, of a court-martial would know that one does not willfully flaunt the authority of .a superior if he is physically unable to perform the tasks he is ordered to do. Implicit in a finding of willful defiance of authority is a finding of' ability to perform. Otherwise there is no free choice.
In developing this rule of law we must not be concerned with minor inconveniences and temperamental nice*426ties. Physical inability to perform means something more than trifling aches and pains. Some discomfort may be felt from performing any task which requires physical exertion and in those instances a refusal based on imaginary ills might be considered willful. However, if an injury is of sufficient severity that ordinary men would find it reasonably prevented performance of the duty ordered there is no possibility that they would find the refusal anything but justifiable. A finding of physical ability to comply with an order so blends in with a finding of defiance of authority in not complying that I am convinced when a court-martial is instructed it must find a disobedience to be willful, it is also instructed that it must find the accused had the capacity to obey.
■ The Court’s opinion anticipates some of the arguments supporting my views and announces they are contrary to the rationale of previously decided cases. With this I disagree, but if the Court is right in its comparison then the rationale of those cases is contrary to good law and a new rule should be announced. Certainly, if a court must pass on an issue under the instructions given, it is not error if a law officer fails to require the same finding under different language. For that reason I see a substantial difference between this case and United States v. Soukup, 2 USCMA 141, 7 CMR 17, decided January 23, 1953. In the present instance, the court was required to find on the affirmative defense raised and the members of a court-martial would so understand. In the Soukup case that burden was not invoked by the instructions. When an instruction requires a finding on a particular element of the offense, or on an issue raised in defense, it matters not the language used by the law officer. The same language can cover both issues particularly when they are hostile and opposed to, each other and an accused is not entitled to have-an instruction given in any particular manner. It is only when the court is not required to consider and find on an issue that error creeps in. Here the court had to find the accused knew he. was refusing, intended to refuse, and that he was a free agent to make that choice before it could return the finding it made. A comparable situation does not arise in those cases dealing with lack of knowledge of superiority. An accused can exercise his free choice and refuse to obey an order without knowing whether it was issued by a superior. A finding that he willfully disobeyed the order does not resolve the question of knowledge and certainly it does not amount to a finding that he knew a superior officer issued the order. There is no reasonable relationship between the two, and while a court-martial could find an accused willfully disobeyed an order regardless of that knowledge, it could not find he willfully disobeyed an order regardless of his physical condition.
One further matter bears mentioning. In this case, the law officer instructed on the lesser included offense of failure to obey. This brings the issue of physical incapacity into bold relief. It is preposterous to believe that the court-martial did not consider accused’s physical condition when it had to consider whether he willfully refused to obey or merely failed to obey. Had there been the slightest doubt that the incapacity was real and not feigned, a verdict of the greater offense would not have been returned.