United States v. Maxie

FERGUSON, Judge

(concurring, in the result):

The issue in this case as I view it is simply whether or not the law officer should have given the following requested instruction:

“The question to be determined is whether the accused under all the circumstances as they appeared to him honestly believed that he was in imminent danger of losing his life or of suffering great bodily harm and that it was necessary to do what he did in order to save himself from such apparent threatened danger and it is not whether a reasonable man or a man of reasonable courage would have so believed.”

Without considering the correctness of the principle enunciated in this instruction, I believe the theory upon which it is based is inapplicable under the factual setting of the instant case. Furthermore, I am satisfied that the law officer adequately and correctly instructed the court on the principal offense, the lesser offenses of unpremeditated murder and voluntary manslaughter, and the affirmative defense of self-defense. These instructions sufficiently incorporated all the issues raised upon which the accused was entitled to have the court-martial instructed. Accordingly, I concur in the result reached by the Court.