(concurring):
I concur.
I concur with Judge Brosman on the issue of jurisdiction in this case. Further, I believe that involuntary manslaughter was raised as an issue and that instructions should have been given on that subject. However, I base my instructional views upon reasons which are not fully set forth in his opinion.
The principal opinion seems to suggest that because the victim in this case had a “remarkably thin” skull, that condition could be considered a factor tending to raise involuntary manslaughter. In my view, the underlying physical condition of a victim is not involved in determining whether the offense committed was murder or involuntary manslaughter. As a general proposition, I believe that if the victim of an assault is of poor health, such physical condition is no defense to an accused charged with murder. To support my premise, I submit the following authorities. 26 Am Jur, Homicide, §§ 48, 52, pages 191, 195, states the rule in the following language:
“. . . Criminal responsibility for inflicting an injury which is the efficient cause of death is not lessened merely because of the predisposed physical condition of the decedent, without which the blow or wound would not have been fatal.”
The following quotation from 40 CJS, Homicide, § 11, page 856, is to the same effect:
“. . . Thus if deceased was diseased or in feeble health and died *822from the combined effects of the injury and of his physical condition, or if the injury accelerated the death from his physical condition, he who inflicted the injury is liable, although the injury alone would not have been fatal had deceased been well.”
The rationale of that general principle has been elaborated in many decided cases. In State v. Smith, 73 Iowa 32, 34 NW 597, 601 (1887), it was shown that the wounds found upon the body of the deceased and inflicted upon her by the feet and fists of the accused were not sufficient to cause her death without other concurrent causes, which were disease of the heart and a state of intoxication. The court held:
“. . . It surely ought not to be the law that because a person is afflicted with a mortal malady, from which he must soon die, whether his ailment be caused by natural or artificial causes, another may be excused for acts of violence which hasten or contribute to or cause death sooner than it would otherwise occur. Life at best is but of short duration, and one who causes death ought not to be excused for his act because his victim was soon to die from other causes, whatever they may be, and in the case at bar we think the jury were warranted in finding that the violence of the defendant contributed to or caused or accelerated the death of his wife.”
In Nelson v. State, 58 Ga App 243, 198 SE 305, 308 (1938), the accused inflicted a severe beating upon his wife which accelerated her death. It was shown that she was suffering from uremic poisoning and would have survived the acts of violence done by the accused had it not been for the disease under which she labored. Although the conviction was reversed for other reasons, the court, in the course of its opinion, said:
“. . . If one be afflicted with a mortal disease, and receives a wound, although itself not mortal, but which hastens or accelerates death, the party inflicting the wound will be accountable for his death. Every man (woman), from the time of his birth, is hastening to his death, and, in a sense, he is born and lives with mortal infirmities, or wounds or diseases, or by whatever name you choose to call his deteriorating vitality, for the workings of the laws of nature are inevitably carrying or hastening him to his death, and no murder does more than to hasten his death or bring it about sooner than the laws of nature would themselves have brought it about if there had been no interference by criminal agency. ... In such case . . . the wound hastens death and the offender can not apportion his wrong.”
The following cases support the same general rule. The underlying physical condition contributing to the death is indicated within parentheses and in each case the harm done by the accused would not have been fatal in the absence of the disease or weakened physical condition: Rutledge v. State, 41 Ariz 48, 15 P2d 255 (1932) (beating a senile woman of 85 who was of delicate health); Tucker v. Commonwealth, 303 Ky 864, 199 SW2d 631 (1947) (striking a man of 67, who was suffering from hardening of the arteries, over the head with a barrel stave) ; Huckabee v. State, 159 Ala 45, 48 So 796 (1909) (inflicting a knife cut i inches deep and 3 inches long on the deceased, who was a bleeder) ; Hopkins v. Commonwealth, 117 Zy 941, 80 SW 156 (1904) (inflicting a minor wound by shooting a victim who was in the second stage of consumption) ; and Griffin v. State, 40 Tex Crim 312, 50 SW 366 (1899) (a skull fracture inflicted with a beer glass upon a victim who was suffering from a brain inflammation). Furthermore, it is not material that the accused did not know, and could not know, from phjrsical appearances, of the weakened condition of the victim. Cunningham v. People, 195 Ill 550, 63 NE 517, 525 (1902).
The majority opinion also places reliance upon the testimony of the accused to the effect that he had no intent to kill or injure grievously the victim as tending to raise the lesser offense. If that statement was standing alone, I might consider it of little importance to an instructional issue, as “A sane *823person may be presumed to have intended the natural and probable consequences of acts shown to have been intentionally committed by him.” Manual for Courts-Martial, United States, 1951, paragraph 138a, page 240. Unpremeditated murder does not require a specific intent, United States v. Roman, 1 USCMA 244, 2 CMR 150; United States v. Craig, 2 USCMA 650, 10 CMR 148, and thus “if a person does an intentional act likely to result in death or great bodily harm, he may be presumed to have intended death or great bodily harm.” Manual for Courts-Martial, supra, paragraph 197e, page 352. Apparently that concept was embodied in the theory under which the prosecution proceeded, but when we are asked to judge the conduct of an accused by an objective standard, we must apply the test to his credible testimony — and not to the Government’s unless it supports the defense theory— in determining whether an instructional issue was raised. One way to attack this theory of the prosecution is to show that the act which resulted in death, in this instance the hitting on the head, was not intentionally done. Here the accused testified that he did not intend to strike the victim on the head, but only on the shoulder. He claims the victim was the aggressor in a pugilistic encounter and that he intended only to discourage any further belligerency. Pretermitting self-defense, his version presents an intent to strike in a non-vulnerable area, and the weapon used was not such as to compel a finding that, when applied to the shoulder, serious injuries might reasonably be anticipated. Thus, if his story is believed, the natural and probable consequences of his act would not result in death or serious bodily injury. True, death did follow, but that result does not preclude a finding to the effect that it was not the natural and probable consequence of the act intentionally committed by the accused.
Obviously, the argument previously advanced would be defeated if the weapon was of such a deadly character that,, when applied to any part of the body, grievous bodily harm was a likely result. Here, the facts disclose the weapon was a stick 40 inches long and U inches in diameter. It was not per se a dangerous weapon, and so its manner of use determines its potentialities for injuring seriously. The decided cases, in similar factual situations, indicate that the jury should be permitted to resolve that question.
In People v. Cook, 15 Cal2d 507, 102 P2d 752, 757 (1940), the accused struck his victim, a young woman, over the head with a “piece of two-by-four about two feet long,” thereby inflicting the injury which caused her death. The court declined to say that such an instrument is inherently dangerous or deadly, and held:
“. . . Therefore, under all the facts and circumstances of the instant case the questions of the nature of the weapon and the manner of its use in their relation to the crime committed were for the determination of the jury.”
In Winter v. State, 123 Ala 1, 26 So 949 (1899), the accused, during the course of a fight, struck the victim over the head with a “green” pliable oak stick, which was 40 inches long and 2 inches in circumference. The encounter took place on an extremely warm day, and the victim’s death resulted from the fact that he was drunk and overheated, as well as from the fact that the accused struck him. It was there held that the question of whether the weapon used could be characterized as being deadly was a question for the jury and and that the trial court did not err in refusing to charge that such a stick could not be a deadly weapon.
I believe the principles found in. the foregoing quotations are sound, and when I apply them here I am unwilling to say that this weapon was dangerous per se. I also conclude that, although the court-martial could have found as a matter of fact that the manner in which the stick was used in this case made it a dangerous weapon and, therefore, grievous bodily harm was a likely result of its use, I cannot say that reasonable men might not reach a contrary conclusion.
Having concluded that unpremedi*824tated murder might not be the sole offense in issue, I drop down the scale to show why, specifically, involuntary manslaughter was raised. Article 119 (6), Uniform Code of Military Justice, 50 USC § 713, defines involuntary manslaughter as follows:
“Any person subject to this code who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being—
(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense, . . . directly affecting the person;
is guilty of involuntary manslaughter. ...”
If the evidence in the record raises reasonably either theory set out in the Article, then an instruction was required. Without reference to subsection (1), I am convinced the testimony of the accused would permit a finding that this death occurred during the course of an offense against the person of the victim.
The Manual, supra (paragraph 1986, pages 355), notes that:
“. . . Among offenses directly affecting the person are the various types of assault, battery, false imprisonment, voluntary engagement in an affray, the use of more force than is reasonably necessary in the suppression of a mutiny or riot, and maiming.”
Here, there was a physical encounter and although accused contended he did no more than defend himself, there was other evidence that the victim attempted to retire from the scene prior to the time when the accused obtained the stick. I need not enter the collateral areas of dispute as absent self-defense the facts show either an assault and battery or a voluntary affray. The issue of self-defense was submitted to and considered by the court-martial and its finding removes that issue from consideration here.
It necessarily follows from what I have stated that the issue of involuntary manslaughter was raised, and appropriate instructions should have been given on that lesser offense.