(concurring in the result) :
I concur in the result.
Properly to review the adequacy of the instructions in this case requires a detailed scrutiny of the. events of the trial. Accused was charged with shooting two Korean men, killing one and wounding the other seriously. Three Korean witnesses — among them the surviving victim — related that they, together with the deceased, were asleep in their home when an American colored soldier, carrying a flashlight and a rifle, entered, awakened them, and asked' if' “there were any fathers around here”— whatever this expression may have meant. One man shouted, directing the soldier to leave. This Korean and another were then taken by the soldier out of the house and into its courtyard. Two shots rang out shortly, and thereafter those in the house went to the courtyard to find both men shot.
Identification of ■ the accused as the American soldier who had entered the house was attacked at the trial through the elicitation on cross-examination of *509information to the effect that each of the. three Korean witnesses had indicated to agents of the Criminal Investigation Division shortly after the shooting that he could not recognize the assailant. To rehabilitate its witnesses, the prosecution then attempted to establish that from a line-up, containing a number of colored soldiers, two of the witnesses had previously identified the accused. The defense thereupon offered evidence of circumstances suggesting connivance in the conduct of the line-up.
The Government sought to bolster its case by offering in evidence an extrajudicial statement of the accused made to representatives of the Criminal Investigation Division. In this statement the accused had explained that on the night of the alleged murder he had stopped at a Korean house to spend the night with a woman friend. Shortly after retiring he heard a noise outside. Opening the door, he observed two Korean men engaged in removing a pair-of radios from his jeep. Thereupon he drew his pistol and shot them both.
The defense did not at all choose to take refuge in any exculpatory declarations contained in this statement, but instead offered strenuous objection to its admission. To support this objection, accused took the stand and urged that the statement had been extracted from him by assurances that to make such a statement might lead to reduction of the homicide charge from murder to manslaughter, or even to the dismissal of all charges. Despite this claim, the law officer admitted the statement in evidence — a determination I cannot characterize as improper in light of the evidence concerning voluntariness.
At the conclusion of the evidence, and after arguments of counsel, the law officer undertook to instruct the members of the court-martial as required by the provisions of the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1951. With respect to elements, instructions were given only as to premeditated murder and aggravated assault, the specific offenses alleged. Several varieties of assault were mentioned as lesser offenses included within premeditated murder, but these were not the subject of instruction. No lesser included offenses whatever were mentioned in connection with the assault alleged under Charge II.
II
In determining whether the instructions were sufficient, we must first consider whether they would have been adequate in light of the evidence of record, apart from the accused’s extrajudicial statement introduced by the prosecution — and thereafter whether the admission of that statement served in any way to change the situation. Clearly, unpremeditated murder was raised as a reasonable alternative to the offense of premeditated murder charged. The latter crime requires proof of a “consciously conceived . . . specific intent to kill.” Manual, supra, paragraph 197 d; United States v. Baguex, 2 USCMA 306, 8 CMR' 106. Here the evidence bearing on the possibility of premeditation is hardly strong, with the result that the triers of fact might have concluded — as they in fact did — that, although an intent to kill was proved, premeditation was not. Of course, the resulting offense, in the absence of a showing of premeditation, would be unpremeditated murder. Descending the scale of homicide offenses, I am sure that voluntary manslaughter was not raised as a reasonable alternative — for there is no single shred of evidence characterizing the killing as a product of “the heat of sudden passion caused by adequate provocation.” Uniform Code of Military Justice, Article 119, 50 USC § 713. Nor. was involuntary manslaughter fairly raised- — -as a hasty reference to the definition of that offense makes plain. Ibid. And the same is certainly true as to negligent homicide. Finally, since it was established that the victim of the homicide was dead as the result of an act of accused, the latter could hardly have been guilty of some form of mere assault. United States v. Davis, 2 USCMA 505, 10 CMR 3. Thus I conclude on the basis of the evidence of record, apart from the extrajudicial statement, that the possible existence of two crimes was rea*510sonably raised by the evidence: premeditated murder and unpremeditated murder. The first offense was the subject of elemental instruction; the second was not. In failing to charge on unpremeditated murder, the law officer committed error.
Ill
In considering the effect of the accused’s statement, we encounter the language of United States v. Johnson, 3 USCMA 209, 11 CMR 209, to the effect that:
“. . . Even though we adopt the rule that the exculpatory statements are not binding on the Government and that they may be contradicted, weakened and otherwise attacked, this does not mean that they aré not sufficient to frame an issue. For that purpose they should be considered as though the accused had given the statement from the witness stand and, unless their exculpatory statements are inherently improbable and unworthy of belief, they should be accepted by the law officer to frame his issues. Used in this manner the court-martial would be left free to assess their weight and credibility.”
Although the extrajudicial statement of the accused had taken the form of testimonial evidence, furnished by him from the witness stand, I find nothing therein which would require instructions on lesser crimes. According to its terms, the accused had intentionally shot two Koreans — and there was no suggestion of “heat of passion.” The only conceivable ' issue the statement might operate to raise would have had to do with whether the shooting was justifiable, since done “to prevent the commission of an offense attempted by force or surprise.” See Manual for Courts-Martial, United States, 1951, paragraph 1975. If the statement did suffice to raise this affirma- tive defense, the law officer committed error in omitting instructions thereon. United States v. Ginn, 1 USCMA 453, 4 CMR 45.
I feel in no way called upon to determine whether the extrajudicial statement of the accused, under any construction thereof, presented matters which would constitute justification for the homicide — or indeed whether homicide may ever be justified when undertaken to prevent the crime of larceny. Instead, my examination of the record of trial has convinced me that, under the defense theory of the case, any right at this level to claim justifiable homicide has been the subject of waiver. The defense, it will be recalled, focussed its entire efforts on destroying the effect of testimony identifying accused as the murderous soldier in question. Thus, the basis for seeking acquittal, as demonstrated conclusively in the closing argument of defense counsel, was that the prosecution had not shown beyond a reasonable doubt that the accused was the soldier who had shot the Koreans. Consistent with this theory of defense, counsel objected vehemently to the admission in evidence of the accused’s extrajudicial statement. The clear purport of that objection, in light of the accused’s testimony in support thereof, and his counsel’s various observations, was that the accused had been improperly induced to make the statement by promises of benefit. The very core of the accused’s statement had been exculpatory — that is to say, that he had shot two Koreans to prevent the perpetration of a larceny. By his objection, therefore,. defense counsel can only be taken to have said that the court-martial should 'disregard the accused’s statement in passing on the issue of guilt. - I do not hesitate for a,moment to hold that the accused’s extrajudicial statement — which at the trial defense urged the court to disregard — shall not now be construed to have raised an affirmative defense in his behalf. Cf. United States v. Mundy, 2 USCMA 500, 9 CMR 130.
I have no sort of wish to criticize defense counsel in his choice of trial tactics. Indeed, I suspect he would have weakened his case substantially in seeking to argue alternatively both failure of identification and justifiable homicide. Can we imaging him, for example, using the following approach? The Gov-*511eminent cannot show that the accused was at the scene of the shooting. However, if he had been there, he would have been engaged in justifiable homicide. My point is that, without going into the wisdom of trial tactics, the defense here made a calculated and informed choice as to the course it would follow. Consequently, it cannot now complain of being held to that course. It goes without saying that I have no desire to sap United States v. Johnson, supra — with which I am in full accord — through utilization of the doctrine of waiver. I am sure I have not done so. Here defense counsel objected vigorously to consideration by the court of the accused’s extrajudicial statement, the essence of which was the presentation of a possible affirmative defense. Thereafter he offered testimony of the accused himself designed to show that the statement was improperly induced — and thus, by implication, that it was untrustworthy. In such a situation I would consider it anomalous to reverse because the law officer failed — without request therefor —to instruct on some affirmative defense the statement might be construed to raise. It is indeed true that a law officer is under a positive duty to instruct concerning the issues of a case before him. However, he certainly labors under no burden of instructing on those which are not a part thereof. Here, so far as the defense was concerned at the trial, the affirmative defense of justifiable homicide was not in issue — this because the defense theory was that the commission- of no sort of homicide by the. accused could be established by the Government. Thus, throughout the trial, and to the very moment of the court’s withdrawal for deliberation on its findings, defense counsel was asserting that the statement in question was not the sort of evidence its members should utilize — • even be permitted to utilize — in reaching its determination. Now appellate defense counsel would have us say that, on the contrary, the statement should have been- given' weight by the court-martial as in itself sufficing to raise an affirmatiye defense. Acceptance of this contention would involve the application of legal rules in vacuo, and would free defense personnel from the reasonable consequences of their knowing election of trial tactics.
IV
It has earlier been said that the law officer erred in failing to instruct on the elements of unpremeditated murder. Does it follow that this error requires reversal in the case at bar — that is, that there is any fair risk that the substantial rights of the accused were materially prejudiced? I am sure that there was no prejudice here, and that reversal is not required. The court-martial having found the accused guilty of the lowest offense reasonably raised as an alternative under the law and the facts, the prejudice resulting from the law officer’s instructional omission was wholly removed. No residue of prejudicial error remains. United States v. Baguex, supra; United States v. Arnovits, 3 USCMA 538, 13 CMR 94; United States v. Gibson, 3 USCMA 512, 13 CMR 68.
Accordingly I agree with my brothers in their affirmance of the decision of the board of review.