(concurring in part and dissenting in part) :
I concur in part and dissent in part.
I agree that the law officer did not err in admitting evidence of the statement made by accused the night before the homicide, and that the concurrence of only two-thirds of the court members present and voting is sufficient to convict for premeditated murder.
However, I do not agree that the accused was prejudiced by the law officer’s instructions on voluntary intoxication and in so hold- ing the majority overrules in silence two distinct and well-defined lines of eases. Since the *756beginning: of this Court, we have consistently adhered to the rule that a law officer is not required to instruct on either an included offense or an affirmative defense unless it is reasonably raised by the evidence. United States v Clark, 1 USCMA 201, 2 CMR 107; United States v Simmons, 1 USCMA 691, 5 CMR 119. Accordingly, unless the defense of voluntary intoxication was reasonably raised by the evidence, the accused was given an instruction to which he was not entitled, and cannot possibly have been prejudiced thereby even though the Instruction was erroneous.
In this case the only evidence conceivably pointing toward intoxication is in the pretrial statements by accused. While he indicates that he may have consumed as much as sixteen bottles or twenty glasses of beer over a prolonged period of time before the killing, he specifically and positively disclaimed being intoxicated. In addition, his actions at the time of the offense indicated a capacity to think clearly, and his second pretrial statement makes it plainly evident that he recollected the events which transpired at that time. We have repeatedly held that mere evidence of drinking, coupled with a claim of intoxication, without more, is not sufficient to entitle an accused to instructions on intoxication. United States v Smith, 6 USCMA 13, 19 CMR 139; United States v Jackson, 5 USCMA 584, 18 CMR 208. Here, not only is there the absence of a claim of intoxication, but a specific disavowal by the accused which fortifies the other evidence that he was in full possession of his faculties. Certainly, it is worth noting that defense counsel could not reasonably argue the defense of intoxication, for to do so would impeach his own client, yet we reverse on the theory that it was in issue. Accordingly, it strikes me that we have taken a large step backward by holding that this accused is entitled to a reversal because the law officer gave an erroneous instruction on intoxication.
Not being content with overturning that line of authorities, my associates go on to overthrow another group of cases which announce what I believe to be good law. See United States v Christensen, 4 USCMA 22, 15 CMR 22; United States v Sharp, 5 USCMA 580, 18 CMR 204; United States v Rodriguez-Suarez, 4 USCMA 679, 16 CMR 253. Here the Court holds that because the law officer instructed on intoxication, we cannot go behind his ruling. Of course, that is not now the law and it should not be proclaimed as such. To place him in that instructional straitjacket makes it extremely hazardous for him to be generous with an accused. One of the shortcomings of the military judge is his hesitancy to be freehanded with an accused and, after this decision becomes the law, I can envisage no liberalization.
One of the best ways in which I can support my views is to quote from the opinion in United States v Christensen, supra, authored by Judge Brosman, who, when speaking for a unanimous court on this issue, stated (page 26):
“The law officer charged court members that intoxication must be considered on the question of intent, although he omitted instruction on at least one included crime not demanding the establishment of specific intent. We consider ourselves wholly unfettered by the law officer’s commendable caution in treating intoxication as an issue in the ease. And so, with all deference to the power of Korean potables, we do not deem that degree of intoxication to have been presented by the evidence which would create the possibility that the accused might have lacked sufficient mental capacity to entertain a specific intent. United States v Benavides, 2 USCMA 226, 8 CMR 26.”
In all of the cases involving the giving of instructions on included offenses or affirmative defenses, we have considered the oft-repeated argument that we cannot weigh facts. I suppose we have rejected that contention times without number because, when we review the evidence in a record, we have the power to ascertain whether there is sufficient as a matter of law to support a finding of guilt or to raise an issue on a theory of defense. If that involves the weighing of evidence, then the cases are *757legion to the effect that an appellate court may consider evidence for those limited purposes.
Accordingly, I conclude that the instruction was a • gratuity, given to accused by the law officer out of an abundance of caution in a capital case. Accused was not entitled to have the court consider the theory or the effect of intoxication, for the issue was not raised by the evidence, and hence he could not possibly have been prejudiced by the instruction.
I would, therefore, affirm the decision of the board of review.