(dissenting):
I dissent.
I have no difficulty with the majority opinion so long as it concerns itself with developing the reasons why a simple assault was committed in this case. It must be conceded that the present Manual has adopted an “apparent ability” test rather than a “present ability” test to determine whether the lesser offense has been committed. We have previously interpreted the provision found in Manual for Courts-Martial, U. S. Army, 1949, paragraph 180⅞, page 244, which was couched in the same general terms to that effect. United States v. Norton, 1 USCMA 411, 4 CMR 3. For reasons set forth hereinafter, however, I cannot accept the proposition that the evidence is sufficient to support the offense, of aggravated assault.
The majority opinion concedes that a knife is not dangerous per se and that it only becomes dangerous when used in a manner which is likely to produce death or great bodily injury. The Manual defines a dangerous weapon in the following terms (paragraph 2076, page 372) :
“Assault with a dangerous weapon. —A weapon is dangerous when used in such a manner that it is likely to produce death or grievous bodily harm. By ‘grievous bodily harm’ is meant serious bodily injury. When the natural and probable consequence of a particular use of any means or force would be death or grievous bodily harm, it may be said that the means or force is ‘likely’ to produce that result. . . .
“With respect to the offense of aggravated assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, it is not necessary that death or grievous bodily harm be actually inflicted.”
The court-martial found that the knife was used in such a manner as to be a dangerous weapon; so unless I arrive at a contrary conclusion, as a matter of law, I agree the findings must be affirmed. The problem is thus reduced to the meaning the framers of the Manual intended to give to the word “likely.” This word is usually defined as of such a nature as to render something probable ' and the Manual quotation adopts such a definition. While simple *49assault should not be determined by distance, it is obvious that proximity may be a factor in determining probable injury. A loaded gun, when the victim is out of range, is not dangerous, and while the intervening space can be reduced, the weapon is harmless until its potentialities for harm can be made effective. Burks v. State, 145 Tex Cr R 15, 165 SW2d 460, 463 (1942); State v. Simon, 247 P2d 481, 483-484 (Mont 1952). Likewise, a knife is not dangerous unless the. parties are so close that it is likely injuries can be inflicted by the manner in which the knife is used.
Each case must depend upon whether the particular use of the weapon renders likely a serious result. As stated by the majority opinion, there is no evidence to indicate that this accused intended to use the knife as a throwing instrument. Had the evidence shown that method of employment, then injuries might have probably resulted, but here the parties were never in close enough proximity so that it could be concluded reasonably that the act of the accused in flourishing the knife would likely produce death or great bodily injury to the victim. United States v. Salisbury, Fed Cas No. 16,214 (1843).
The majority of this Court and I part company on more than just the facts of this case. There is an erroneous idea in the majority’s reasoning, and it merits more than mere mention. The principal opinion seems willing to insist that only two possibilities are present. Either a weapon must be incapable of causing injury under any conceivable circumstances or else the weapon is “likely” to produce death or grievous bodily harm. I am of the opinion that at least a third alternative is present. To my mind, and as a matter of law, it might be possible to cause injury with a weapon under certain circumstances; yet it might not be likely that injury would be caused. Moreover, I recognize a clear distinction between a weapon incapable of causing injury under any conceivable circumstances and a weapon with which injuries might possibly be inflicted under certain circumstances. On the facts of this case, if I were driven to accept one of the two alternatives offered by the majority opinion, I would be willing to hold that no reasonable man would believe that a knife which was not used as a missile is capable of inflicting injury when brandished at a distance of ten yards.
It is, I believe, more than mere coincidence that the majority opinion does not cite a single authority to support its conclusion that assault with a dangerous weapon is supported by the facts of this case. Price v. United States, 156 Fed 950 (CA 9th Cir), is a case where only simple assault was affirmed by the court. In Wells v. State, 108 Ark 312, 157 SW 389, the defendant was indicted for assault with intent to murder, but convicted of a mere simple assault. The case of State v. Barella, 73 RI 367, 56 A2d 185, represents a correct result and well illustrates why the evidence is insufficient in this case to make out assault with the dangerous weapon. In that case the defendant swung at the victim with a large shovel and missed striking his victim on the head by no more than an inch or two. Contrast that case with this, where accused waved a knife having a five inch blade at a distance of thirty feet from the victim.
I conclude that the evidence is insufficient to sustain the offense found, but sufficient to support the lesser included offense of assault. I would return the record of trial to The Judge Advocate General of the Army for reference to a board of review for appropriate action.