(dissenting):
I dissent from the views expressed in the majority opinion and the action taken by my brothers in this case.
II
I am quite unable to predicate af-firmance on a single and highly extraordinary statement which — ■ 0ne witness claims — issued from the accused after the shot in question was fired, and which, it is said, completely removed from consideration the lesser offense of assault with a dangerous weapon. My reading of the record discloses literally nothing else which supports the result reached in the principal opinion.
In essence, the evidence revealed that, on Christmas night of 1953, the accused —who had been drinking heavily — visited a tent occupied by several other soldiers, all of whom appear to have been cooks. He fell asleep atop a bunk there, and efforts to remove him led to fisticuffs between himself and a corporal named Bell. One Jenkins, a friend of the accused, testified that he succeeded in leading the latter from the tent, and watched him as he proceeded up a nearby hill toward his own quarters.
Another witness, a Master Sergeant Land — the accused’s platoon sergeant— stated that, as he entered the cooks’ tent shortly thereafter, a bullet sped by him. He investigated immediately, and discovered Jackson on the crest of the hill armed with a rifle; and — when Land approached and asked who fired — the former responded “I was firing at Jenkins and shooting to kill.”
Later — as Prosecution Exhibit 1— the Government introduced a statement executed on December 26. by the ac*589cused, after proper warning, which related that:
“. . . When I got back, I went up to the cook’s tent and I was drinking some whiskey up there. Then I must of dozed oíf. I woke up and Cpl Bell was shaking me. I think I was out of my senses. Bell tried to pull me out of the tent and I didn’t know if I was in my own tent or not, and me and him had a fight and they pulled us apart. Then I went up to my tent and got my rifle and loaded it and shot down through the cook’s tent, and then I waited for someone to come to the door. M/Sgt Land come up on the hill where I was and asked who fired the shot. I told him I fired the shot, that I had trouble with the cooks in the tent. He told me to go to bed and took my rifle.”
No evidence of any nature was offered by the defense.
The law officer correctly instructed the court-martial concerning assault with intent to commit murder. As “the two lesser included offenses” within the language of the specification, he further informed the body’s members of the elements of assault whereby grievous bodily harm is intentionally inflicted, in violation of Article 128(b)(2) of the Uniform Code, 50 USC § 722; and those of willful and wrongful discharge of a firearm, in violation of Article 134, 50 USC § 728. It is to. be noted that no one was injured in the case at bar — intentionally or the reverse — and, as a result, the first lesser offense instruction was wholly inappropriate. He also advised the court properly of the effect of intoxication on the alleged offense of assault with intent to commit murder, but at no time did he mention the possibility of an assault with a dangerous weapon. See Uniform Code, Article 128(b)(1).
Ill
The author of the major opinion makes capital of the argument that evidence of intoxication in a degree sufficient to require an instruction on the issue of drunkenness was not revealed by the record, and that — inferentially —the law officer’s charge on intoxication was merely the exercise of a commendable caution on his part. Were the evidence that the accused “had been drinking” the only item favorable to his interests found in this area, I should be much inclined to join him in this position. However, there is somewhat more to the matter as we meet it here.
In the first place, Jenkins — according to his own testimony — was a friend of Jackson, and could offer no sort of explanation of the accused’s expressed wish to kill him. Indeed, the latter’s scuffle had involved -Corporal Bell, and not Jenkins, who in friendly fashion had attempted to assist Jackson to his own tent. Further, the written statement executed by the accused makes no slightest reference to hostility toward Jenkins, or to any purpose to kill him. Cf. United States v. Johnson, 3 USCMA 209, 11 CMR 209; United States v. Lee, 3 USCMA 501, 13 CMR 57.
In short, the intention to kill alleged in the specification rests solely on the accused’s remark, which alluded to Private Jenkins and was reported by Master Sergeant Land. It is the presence of this very statement, however, which causes me concern. Eliminating the possibility of intoxication as an issue, the accused’s assertion that “I was shooting at Jenkins and shooting to kill” — viewed against the background of circumstances surrounding the event— simply defies human experience.
The accused had fired into an inhabi-tated tent, and could reasonably have expected prompt investigation by someone therein. I have difficulty in conceiving of a situation in which a sober man, when asked the origin of a certain rifle shot, would be willing to answer as the accused did. If — as the majority maintains — he was mentally capable of understanding and responding to Sergeant Land’s question in an intelligent manner, why, I must inquire, did he reply in a style so distinctly unintelligent! A statement tailored more perfectly to fit the crime of assault with intent to murder — and therefore a more senselessly incriminating .one — -would be difficult to devise. If such a self-disserving assertion was not uttered by a man whose senses had been stupefied *590beyond reason by alcohol, then it simply must not have been made in the language reported by Land. Indeed, I strongly suspect that the Sergeant’s recollection of the accused’s words was colored somewhat by the memory of a rifle slug’s recent passage near him. Had I sat as a member of the court-martial which convicted the accused, I am sure that I would not have accepted Sergeant Land’s version of the accused’s statement as uncritically as have my brothers here.
I observe further that the admission of this statement was sharply contested by the defense by reason of a claimed violation of Article 31 — and the law officer specifically and elaborately instructed the court that the question of its voluntariness was to be considered by its members, and that they might properly refuse to consider it. Since the chief item of evidence on which the entertainment of a specific intent rested might, therefore, in accordance with the law officer’s direction, have been disregarded by the members of the court — totally or in part — it is the more difficult to.conclude that the possibility of guilt of the lesser offense of assault with a dangerous weapon was not reasonably raised. As we have remarked in earlier cases, it is an exceedingly troublesome matter in most situations to establish that-an accused genuinely intended not only to injure his victim, but also to kill him. See United States v. Christensen, 4 USCMA 22, 15 CMR 22; United States v. Holman, 3 USCMA 396, 12 CMR 152. This statement seems markedly appropriate within the present context.
IV
My brothers advance a further argument to the effect that the defense waived whatever right it may have enjoyed to an instruction on the offense of assault with a dangerous weapon by its failure to request such a charge, and by asking instead that the court be instructed on another lesser offense — that of willful and wrongful discharge of a firearm. After a detailed, thoughtful and realistic examination of the record, I remain unconvinced that the lawyers for the accused were moved by any sort of purpose that the court should choose only between the “all” of an assault with intent to commit murder, and the comparative “nothing” of the offense of willful and wrongful discharge of a firearm. Indeed, it is entirely probable that they- — like the law officer himself —were thoroughly muddled with respect to the distinction between the aggravated assault violative of Article 128(6) (1) and that set out in 128(6) (2). It will be recalled that the latter, which was palpably inapplicable under the facts of the case, was used by the law officer as a basis for instructions.
V
In light of the foregoing, I would hold here that the findings may not lawfully be affirmed, and would order that the record of trial be returned to The Judge Advocate General, United States Army, for appropriate action. This action, of course, could take the form either of the direction of a rehearing, or of an affirmance of guilt of assault with a dangerous weapon, together with a reassessment of sentence.