(concurring in part and dissenting in part):
As I understand the personal views of the Chief Judge, he would require a rehearing as to the accused, Jackson, and would not permit an affirmance of guilt of involuntary manslaughter. Although I agree with much that is said by him, I believe, like Judge Lati-mer, that this alternative should be open to service authorities here.
The responsibility of the accused, *205Burns, for unpremeditated murder is revealed unmistakably by the record of trial — -indeed by his own testimony. That of Jackson, however, is much less certain — and this uncertainty possesses two facets: insufficiency of the evidence and instructional error. As to each we are confronted with the necessity for applying the principles having to do with criminal liability as an aider and abettor.
II
To me three Articles of the Uniform Code appear to be material. Article 77, 50 USC § 671, renders liable as a principal one who “commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission.” Article 118, 50 USC § 712, characterizes as a murderer one who “unlawfully kills a human being” when he “intends to kill or inflict great bodily harm.” Article 119(b), 50 USC § 713, states that an accused person shall be deemed guilty of involuntary manslaughter if he, “without an intent to kill or inflict great bodily harm, unlawfully kills a human being . . . while perpetrating or attempting to perpetrate an offense, other than those specified in paragraph (4) of Article 118, directly affecting the person.”
One rationale for the vicarious responsibility of an aider and abettor derives from the law of conspiracy. The well-estabished rule is that an accused will be held liable for a substantive offense committed by a coconspirator when the criminal act was connected with and in furtherance of the objects of the conspiracy. Pinkerton v. United States, 328 US 640, 90 L ed 1489, 66 S Ct 1180; Nye and Nissen v. United States, 336 US 613, 93 L ed 919, 69 S Ct 766. To my mind, however, the record of trial here fails to disclose the existence of a preconceived agreement between Jackson and Burns whereby they would assault any victim in any degree. Thus, we turn to the more general concept which “makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy.” Nye and Nissen v. United States, supra, at page 620.
As this Court has said earlier, an “aider and abettor must share the criminal intent or purpose of the active perpetrator of the crime, and must by his presence aid, encourage, or incite the major actor to commit it.” United States v. Jacobs, 1 USCMA 209, 2 CMR 115. Jackson insists that he did not share the purpose of Burns to wield a knife against the deceased, Brueck-mann. Undoubtedly, though, he did participate to the hilt in a project looking to the commission of a simple assault on the ultimate victim. By turning to follow the German couple and thereafter pursuing them as they fled, Jackson gave the pair every reason to anticipate that unwelcome force would be applied to their persons if they remained where they were fully entitled to be. Cf. United States v. Smith, 4 USCMA 41, 15 CMR 41. Indeed, Jackson testified that he ran against the deceased when the latter halted suddenly — and, although this bodily contact be regarded as accidental, it would surely constitute a battery within the intendment of military law. See Manual for Courts-Martial, United States, 1951, paragraph 207a.
In United States v. Wooten, 1 USCMA 358, 3 CMR 92, this Court commented that “It is certainly a well-established rule of criminal responsibility that principals are chargeable with results which flow as natural and probable consequences of the offense subjectively intended.” While that case was concerned with the criminal liability of one who — by reason of absence at the time of the crime — would at common law have been considered an ■accessory before the fact rather than an aider and abettor, I find no intimation that the rule is to be limited to the former group of persons.
Numerous legal writers seem agreed in this particular. For instance, Corpus Juris Secundum notes that:
“Where, however, two or more persons acting with a common intent jointly engage in the same undertaking and jointly commit an unlawful act, each is chargeable with liability and responsibility for the acts of all *206the others, each being guilty of the offense committed, to which he has contributed to the same extent as if he were the sole offender. The common purpose need not be to commit the particular crime which is committed; if two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the .other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a natural or probable consequence thereof. In order to show a community of unlawful purpose it is not necessary to show an express agreement or an understanding between the parties; nor is it necessary that the conspiracy or common purpose shall be shown by positive evidence. . . .” [Emphasis supplied. 22 CJS, Criminal Law, § 87.]
A somewhat parallel pronouncement is the following, found in American Jurisprudence:
“There can be no doubt of the general rule of law that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it and that if he combines and confederates with others to accomplish an illegal puz-pose, he is liable criminaliter for everything done by his confederates which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though what was done was not intended as a part of the original design or common plan.” [14 Am Jur, Criminal Law, § 80. Compare 26 Am Jur, Homicide, §§ 64, 66.]
And Wharton comments:
“When an intent exists to do wrong, and an unintended illegal act ensues as a natural and probable consequence, the unintended wrong derives its character from the general evil intent.” [Wharton, Criminal Law, 12th ed, § 157.]
“All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime.” [Id. at § 258.]
“While an accessory before the fact (or instigator) is responsible for all crimes incidental to the criminal misconduct he counsels, or which are among its probable consequences, it is otherwise as to collateral crimes not among such incidental and probable consequences.” [Id. at § 268.]
Finally, Clark and Marshall’s handbook has this to say about the matter:
“It is not always necessary, however, to render one guilty of a crime as a principal in the second degree or accessory before the fact, that he shall have contemplated or expressly assented to the commission of the particular crime. The general rule is that, if several persons combine or conspire to commit a crime, or if persons command or counsel a crime, or aid and abet in an attempt to commit a crime, or if several engage in an unlawful enterprise, each is responsible as principal in the second degree or accessory before the fact, according to the circumstances, for all acts committed by the others in the execution of the common purpose, if such acts are a natural or probable consequence of the unlawful combination or undertaking.” [Clark and Marshall, Law of Crimes, 5th ed, § 183.]
As I analyze this doctrine of vicarious criminal liability, one who participates with another intentionally in a criminal enterprise will be held responsible for the natural and probable consequences of the project entered into. This responsibility does not depend on on a finding by the trier of fact that he intended those results. Cf. Manual for Courts-Martial, supra, paragraph 138 a. Instead, it hinges solely on a finding that such were the natural consequences.
It has already been suggested that *207Jackson did intend to participate in an assault on the two Germans — and was himself the sole actor in the commission of a battery. He knew, or certainly should have anticipated that Burns — who, like himself, was armed with a knife — would follow. In a sense then, Jackson instigated the conduct of Burns, since both testified that Jackson led in the pursuit of the fleeing Germans — although their testimony differed concerning the extent to which Jackson had outdistanced Burns when the former collided with Brueckmann. Of course — according to their testimony — Jackson hesitated to retrieve his hat, and did not join in the stabbing of the deceased. However, it must be clear that this action on his part did not amount to that affirmative withdrawal required as a prerequisite to an escape from liability for the assault by Burns on the German. Compare Clark and Marshall, supra, § 187; Wharton, supra, § 267; 22 CJS, supra, § 89.
It can be regarded as neither unnatural nor unexpected that a person in Brueekmann’s position— pursued as he and his female companion were by two alien soldiers at night in a dark enclosure — would resist to the utmost. Nor can it be considered unforeseeable that his pursuers — both armed with knives — would inflict a serious wound in the ensuing encounter. Thus, as the homicide must be deemed a natural and probable consequence of the joint venture, it follows that Jackson — like Burns — is chargeable in some degree therefor. Indeed, when Article 77 and Article 119(b) are construed conjunc-tively, it is unmistakable that Jackson, through his own testimony, was liable for involuntary manslaughter at least, because of his aid and abetment in Burns’ assault — an offense directly affecting the person of another as a result of which death occurred.
Ill
That murder may be made out, however, an intent to kill, or to inflict great bodily harm, is demanded. Will the intent of Burns in that particular necessarily be imputed to Jackson by operation of Article 77? The opinion of this Court in United States v. Jacobs, 1 USCMA 209, 2 CMR 115, quite clearly intimates a negative response to this inquiry. There the accused had been found guilty of larceny, of robbery, and of assault — all by reason of having participated with three other soldiers in an assault against a Japanese National. The victim had been deprived of a purse containing money — but this property had not been found in the accused’s possession, but rather in that of another soldier. To the accused’s contention that the Government had failed to show that he intended to take any sort of property, and that therefore he could not properly be convicted of larceny and robbery, the Court replied: “Circumstantial evidence may be relied on to establish that one who committed an act in furtherance of a crime, in fact shared a common purpose to accomplish the resulting felony.” Significantly, however, we did not say that— because of his fellow’s design to commit larceny — the absence of an intention to steal on the accused’s part would be irrelevant under Article 77.
The implications of that opinion are supported both by the text writers and by judicial decisions. As Wharton points out, the guilt of a principal and that of an accessory may vary in homicide cases according to the motivation of each. Supra, § 276. Another authority indicates that “When a specific intent is necessary to constitute a particular crime, one cannot be a principal in the second degree to that particular offense unless he entertains such an intent.” Clark and Marshall, supra, § 169. And American Jurisprudence declares :
“. . . According to these rules, the guilt of a principal in the second degree is measured by the intent of the one actually committing the crime, where both have the same intent and purpose; but if the intent of the one who so aids or assists is a different criminal intent, he is guilty according to the intent with which he may have performed his part of the act, notwithstanding this may result in rendering him liable for a graver *208offense.” [14 Am Jur, Criminal Law, § 91. See also § 84.]
Similarly, Corpus Juris Secundum announces that:
“Where a particular intent is an element of a felony, it is essential that one aiding and abetting the commission of such offense should have been aware of the existence of such intent in the mind of the actual perpetrator of the felony; but if accused had knowledge of the particular intent on the part of the actual perpetrator of the felony this is sufficient.” [22 CJS, Criminal Law, § 87a..]
The cases collected in 12 ALR 275 support the same propositions.
When I apply these principles to offenses denounced by the Uniform Code, I can only conclude that on occasion the liability of a principal may be quite different in degree from that of an aider and abettor. For instance, in homicide prosecutions the principal, if he intentionally kills another without provocation, may be guilty of murder, whereas an aider and abettor, acting in the heat of passion, may be guilty of voluntary manslaughter only — and, of course, vice versa. Similarly, the principal may have premeditated the homicide and thus become criminally liable under Article 118(1) of the Code, although the aider and abettor — depending on his state of mind — may be guilty of no more than unpremeditated murder under Article 118(2) — and again vice versa. A third possible situation is one which possesses materiality in the instant case. The principal may have been moved by a clear purpose to kill the victim, but the aider and abettor may have intended a simple assault alone, and may not have known of the graver intention in the principal’s mind. In that event, the principal will be liable for murder in violation of Article 118, but the aider will be held responsible only for involuntary manslaughter as proscribed by Article 119.
IV
It is obvious that the liability of Jackson for involuntary manslaughter was raised by the evidence. Since the law officer supplied no instruction with respect to that alternative, I must concur in a reversal — although I do not agree with the Chief Judge’s conclusion that an instruction on simple assault should also have been furnished.
Is the evidence sufficient to support a finding of unpremeditated murder in the event of a rehearing? I have outlined earlier my reasons for believing that the homicide here constituted a natural and probable consequence of the pursuit of the Germans which was initiated by Jackson. Accordingly, I must conclude that the trier of fact in the case at bar could justifiably have inferred that the accused, Jackson, intended the ultimate death of the victim, or at least the infliction of great bodily harm on him. Manual for Courts-Martial, supra paragraph 138a. This inference is the more easily supportable for the reason that Jackson testified to his belief that the German couple had spoken in a derogatory manner of himself and Burns. And the members of the court-martial might well have reasoned that the two soldiers — their judgment impaired by a heavy intake of alcohol — were determined to wreak vengeance on their detractors.
Still another hypothesis, which might conceivably become important on rehearing, runs to the effect that Jackson knew that Burns — although not himself — was determined to inflict serious bodily harm at the least on the Germans — and this knowledge would also suffice to meet the intent requirements of Article 118 (2). And so, without reciting more of the evidence before the court-martial here, I must record my conclusion that it furnishes a legally sufficient basis for a finding of guilt of unpremeditated murder as to Jackson — although a subsequent court, when fully instructed on the lesser offense, could with equal propriety find him guilty of no more than involuntary manslaughter as denounced by Article 119.
V
In keeping with these views, I would *209remand the record of trial to The Judge Advocate General of the Army for a determination of whether to affirm as to Jackson findings of guilty of involuntary manslaughter, or instead to direct a rehearing on a charge of unpremeditated murder,