(dissenting):
I dissent.
It is clear that the actions of the accused were directed solely against the victim and did not endanger the lives of others. Under the circumstances, the indiscriminate inclusion of the elements of both types of unpremeditated murder within the framework of the instructions was wrong. United States v. Davis, 2 USCMA 505, 10 CMR 3; United States v. Holsey, 2 USCMA 554, 10 CMR 52.
It does not follow, however, that the findings and the sentence should be set aside. Under Article 59, Uniform Code of Military Justice, 50 USC § 646, we should not reverse unless the error materially prejudiced the substantial rights of the accused. See United States v. Goodson, 1 USCMA 298, 3 CMR 32; United States v. Hopf, 1 USCMA 584, 5 CMR 12; United States v. Kubel, 1 USCMA, 645, 5 CMR 73; United States v. Jenkins, 1 USCMA 329, 3 CMR 63. Here, the defective instructions would prejudice the accused only if the evidence indicated a reasonable probability that the court would base its findings upon the theory that the accused was engaged in an act inherently dangerous to others, evincing a wanton disregard for human life. United States v. Davis, supra; United States v. Holsey, supra.
After careful consideration of the evidence, I find no such probability in this case. Indeed, I can discover no reasonable possibility of it. Reduced to its essentials, the evidence establishes that the accused, angered by his paramour’s actions and doubtlessly suspicious of her behavior, armed himself with a lethal instrument, and awaited her return. Immediately upon the appearance of Quinóla, the victim, the accused shot and killed him. The facts so clearly indicate an intent to kill that every other rational hypothesis is excluded. See United States v. Black, 3 USCMA 57, 11 CMR 57. The only evidence to the contrary is the bare assertion of the accused that the weapon was accidentally discharged when he aimed it at Quinóla to repel! an assault by the latter. This is a palpable fabrication. It is inconsistent with his original statement of the reason which prompted him to procure the weapon in the first place, namely, “because [he] was mad about the whole situation.” Realizing that this supplied a motive for the slaying, he changed his story at the trial and asserted that he had armed himself against the possibility of encountering thieves.
The physical facts of the case completely belie the accuracy of the accused’s assertion that the weapon was accidentally discharged. The shooting occurred in a room ten feet wide. When Quinóla first entered, the participants were separated by only six feet. Had Quinóla launched an assault upon the accused under these circumstances it would obviously be impossible for the latter to reach under a pillow, seize a pistol, load, and aim it before Quinóla was upon him. The glaring inconsistencies and inherent improbabilities require the rejection of this exculpatory portion of his testimony and destroy it as the basis of a finding. See United States v. Ginn, 1 USCMA 453, 4 CMR 45. To arrive at a finding of guilt predicated upon any theory other than an intent to kill or inflict great bodily harm, the court-martial would have to reject the only reasonable view of the evidence and accept instead an obviously false statement. It is extremely difficult to believe that the court in this instance either did so, or could have done so. Therefore, I conclude that it was not misled by the instructions. Consequently, the accused was not prejudiced. United States v. Jenkins, supra; United States v. Moynihan, 1 USCMA 333, 3 CMR 67; United States v. Boone, 1 USCMA 381, 3 CMR 115; United States v. Cook, 1 USCMA 421, 4 CMR 13; United States v. Shepard, 1 USCMA 487, 4 CMR 79. I would affirm the decision of the board of review.