(concurring):
While the principal opinion uses somewhat broader language than I can accept in vacuo, I have no trouble in concurring in its application to the peculiar facts of the case at bar. What I have just said bears special reference to that portion of the opinion which deals with the necessity for a specific instruction on accidental homicide.
II
As I see it, whether an instruction of this nature is to be demanded in a particular case must depend on exactly what was said by the law officer in charging on the elements of the offense alleged. In this respect it must be obvious that each case must necessarily rest on its own bottom. Cf. United States v. Heims, 3 USCMA 418, 12 CMR 174.
I am in full rapport with my brothers in their certainty that the members of the court-martial in the case at bar could not reasonably have found the accused guilty of negligent homicide under the instructional phrasing used as to elements, and, at the same time, *639have believed that the death of the little girl was the product of accident. For this reason I agree with them that the law officer did not err in omitting to instruct specifically and directly on accidental homicide, failing a request to do so. This does not mean, of course, that I believe that the giving of such an instruction sua sponte would not have accorded with the better practice.
Ill
We are dealing here, I think, with a situation quite different from one involving self-defense, in which we have generally held an instruction to be required when the possibility of excuse on this theory is reasonably raised by the evidence. United States v. Ginn, 1 USCMA 453, 4 CMR 45. There, the idea embodied in the accused’s position is not only markedly collateral to the crime charged, but at the same time it is more complex and less cognizable through the unguided perception of the court-martial. Thus, when compared with accidental homicide, it is much more genuinely affirmative in nature. As to it, the court-martial stands in urgent need of advice, and almost never will instruction on offense elements alone afford its members the direction they require.
And the same is true, but for a different reason, in another area — and one in which the members of this Court on occasion have been in some disagreement. I am referring here to the question of the necessity for an explicit instruction on unpremeditated murder following a wholly adequate charge on the premeditated offense. While my brothers have been willing to dispense with specificity in this area at times, I have not done so as a general thing. Whatever the right and wrong of this, I am sure that we have another problem here.
In a theoretical sense, all lesser included crimes are charged in the allegation of a principal offense. This must be true else a finding of guilty as to one of them could not lawfully be returned by a court-martial. This, as I understand it, is the reason behind our holding that the law officer must instruct sua sponte on all lesser crimes reasonably raised by the evidence in order to comply with the mandate of Article 51(c), Uniform Code of Military Justice, 50 USC § 626. United States v. Clark, 1 USCMA 201, 2 CMR 107. Thus we have a situation involving the necessity for detailed instructions on an offense charged. United States v. Clay, 1 USCMA 74, 1 CMR 74. In the case before us now, however, we are dealing not with elemental instructions, but rather with the necessity for a charge on an affirmative defense. Provided the latter is brought into issue, both are required, of course. Yet as to the affirmative defense — in my view, that is — more leeway, a greater play, is allowable. For these reasons I am able to concur outright in the Court’s opinion in this ease.