(concurring in the result):
The Chief Judge and I are clear that we meet a 118 (3) homicide here, and that the law officer did not err in his instructions on unpremeditated murder.
We also agree that the possibility of accident was not reasonably raised by the evidence. Either on the basis of the prosecution’s case or the accused’s story —as the latter appears in his pretrial statement and in testimony from the stand — -we must conclude that his conduct was at least criminally negligent. Thus, no court-martial engaged in doing its duty could have found the killing accidental. To that extent we are in entire accord with Judge Latimer. Indeed we would be able to concur outright were it not for his statement that “the requested instruction [in the instant case] is nothing more than the converse of the theories set out by the law officer in the instructions he gave.” In the Bull case, cited by the author of the principal opinion, the defense counsel wholly failed to request an instruction on accidental homicide, whereas in the present case such a request was duly made.
Pretermitting any question of the duty of the law officer to instruct sua sponte on affirmative de- fenses, we have held on numerous occasions that, where a general instruction is supplied the court-martial, the burden of requesting elaboration, specification, clarification, or the like, rests on defense counsel. Yet in a situation in which proper clarification is demanded, Judge Latimer would brush aside the request because the offered instruction embraced no more than the “converse” of instructions given. It strikes us that under this view the accused must lose whichever way he turns. The accused is entitled to a requested instruction on a theory of his case — if reasonably raised under the law and the facts.
In saying this, we do not suggest that all requested instructions must be *69given. Certainly, they need not be if they constitute a mere duplication of those already given. Here we hold only that a request for a proper instruction on homicide by accident or misadventure is not embraced within the principle of duplication. Therefore, we are unable to buy what the author of the principal opinion — by way of dictum— offers for sale on this subject. It may be added that in determining whether a requested instruction might operate to enlighten the court-martial during its deliberations, the law officer should resolve doubts in favor of an accession to the request of the accused.