(dissenting):
I dissent.
This accused was tried for, and found guilty of, lifting a weapon against his superior officer, willful disobedience of his superior officer, and assault with intent to commit murder, in violation, respectively, of the Uniform Code of Military Justice, Articles 90 and 134, 10 USC §§ 890, 934.
The record shows that the accused was seen by a friend leaving his barracks in Korea after hours. He mumbled to the friend that he was “going out to kill somebody.” Thereafter, he went to the guard post at the company gate; secured and loaded a carbine; and proceeded down the main supply route. The company officer of the day was duly summoned and, upon observing the accused on the route, ordered him to return to the area and surrender his weapon. The accused walked toward the officer and, suddenly raising his weapon, fired one round. The missile struck a gate guard in the spine, causing him to suffer serious injuries.
Psychiatric testimony at the ensuing trial indicated that the accused, although classified as a “paranoiac personality,” was suffering from no mental defect, disease, or derangement, and was able to distinguish between right and wrong and to adhere to the right on the night in question. On the other hand, the prosecution’s expert medical witness admitted on cross-examination that accused’s personality defect may have caused him not to adhere to the right on the night in question, although “he should have been able to”; that a paranoiac personality might become psychotic on occasion; that a period “approaching paranoia” could be brought on by emotional stress; but that “A doctor should be able” to distinguish the two aberrations. He concluded with the statement that he was satisfied that accused was merely a “paranoiac personality.” Lay witnesses indicated that accused’s eyes were staring during the incident; that he had been subjected to considerable teasing concerning his predilection for the company of Korean nationals; and that the pretrial investigating officer questioned accused’s responsibility for his acts, although he had seen a psychiatric report indicating accused was sane.
With the evidence in the foregoing posture, the law officer instructed on the elements of the offenses charged and the defenses of insanity and mental capacity to entertain the required knowledge or specific intent. It is the question of the propriety of these instructions which finally brings the case to us, and, as hereinafter indicated, I differ from my brothers’ conclusion that the accused was not harmed by their deficiencies.
I
The law officer delineated the guide*481posts to the members of the court for the offense of assault with intent to commit murder as follows:
. . Again, as to the Specification of Charge II, the court is advised that to find the accused guilty of Charge II it must be satisfied by legal and competent evidence beyond a reasonable doubt, That, at the time and place alleged, and in the manner alleged, the accused, without justification or excuse and with unlawful force or violence, did bodily harm to Richard Williams; That, the accused intended to commit murder; and, That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
“To define an intent to kill, That at the time of the shooting the accused had a design to kill; That the shooting was without justification or excuse and an unlawful act of the accused as alleged.”
From the very first time the question was raised, this Court has required the term “murder” to be defined to members of the military jury when an assault with intent to commit that crime was charged. Thus, in United States v Williams, 1 USCMA 231, 2 CMR 137, we said;
“. . . [T]here was nothing in the specification or the instruction which in any way defined the crime of murder. The latter is a particularly difficult crime to outline and the differences in degrees between murder and manslaughter are sometimes indefinite and difficult to determine. If the accused were charged with murder, no one would contend that all the elements of that crime should not be mentioned. But, too often, the necessity to give the same information is overlooked when the crime is used as a predicate for an assault. It would appear to be most difficult for members of a court-martial to determine whether or not an accused intended to commit murder without Jcnoiving what elements bring into existence that state of mind.” [Emphasis supplied.]
That the Williams case continues to have vitality is evidenced by our subsequent reversals for failure to define the term “murder” in United States v Banks, 1 USCMA 479, 4 CMR 71; United States v Avery, 1 USCMA 533, 4 CMR 125; United States v Looking-horse, 1 USCMA 660, 5 CMR 88; United States v Warren, 2 USCMA 59, 6 CMR 59; and United States v Cooper, 2 USCMA 333, 8 CMR 133.,
The majority opinion does not indicate disagreement with the principle of the foregoing cases and I am sure that its author does not intend to overrule these important holdings sub silentio. However, compliance therewith is apparently found in the law officer’s requirement that accused have an “intent to kill.” I cannot bring myself to believe that the court members derived guidance from the muddled statements of the law officer but, assuming that they were able to realign his declarations in some semblance of order, the demand that he define the offense of murder is not yet met. Intent to kill is only one element of one variety of that crime, and he utterly failed to set forth with particularity its other requirements. As that is what we have held he must do and as that is the knowledge which the court-martial must necessarily have in order to determine whether the accused intended to murder his victim, I must record my disagreement with the proposition that the instructions on this subject were sufficient.
II
The second issue regarding the law officer’s advice involves his statement in instructions on the defense of insanity that “insanity may be feigned with ease.” I unreservedly join my brothers in condemning the delivery of this doubtful statement in the form of an instruction to the members of the court. However, I wholly disassociate myself from their belief that its insertion was not prejudicially erroneous. Contrary to their conclusion, I contend *482that the record does raise an issue concerning accused’s mental responsibility.
True it is that an expert witness opined that the accused’s psychiatric malady was no more than a personality disorder. However, the positive character of his assertions was considerably weakened on cross-examination, and he indicated that a paranoiac personality might become psychotic on occasion as a result of emotional stress. The accused was shown to have suffered over a period of time the taunts of his comrades and the investigating officer concluded, despite the witness’ contrary sanity report, that he was irrational. Indeed, the unmotivated attack on the victim and accused’s declaration that he was going to kill “somebody” bespeak his mental instability. Consideration of these factors leads me to the conclusion that, as indicated by the law officer’s instructions on the issue, the question of accused’s mental responsibility was in issue at the trial. That being so, the ill-chosen phrase concerning the faking of insanity violated two well-settled concepts in the framing of instructions.
In United States v Andis, 2 USCMA 364, 8 CMR 164, we early held that the law officer was empowered to comment on the evidence before the court, so long as he was careful to indicate to the members that his opinions were not binding on them. Cf. United States v Smith, 3 USCMA 25, 11 CMR 25.
Here, however, where the accused’s sole defense was predicated on mental responsibility, the court was informed, in connection with a legal presumption of sanity, that irresponsibility was simulated with ease. At no time did the law officer characterize this questionable concept as his opinion, nor did he inform the court members that they were not bound by its terms. Secondly, we have repeatedly pointed out the error inherent in instructing on theories unsupported by the evidence. United States v Hatter, 8 USCMA 186, 23 CMR 410; United States v Holsey, 2 USCMA 554, 10 CMR 52; concurring opinion of Judge Latimer, United States v Cothern, 8 USCMA 158, 23 CMR 382. There is not one scintilla of evidence in this record to indicate that the accused shammed insanity. Thus, the instructional comment was not only not limited to a statement of the judge’s opinion, but introduced into the case an element totally foreign to the positions of both the Government and the accused.
The prejudicial effect of the breach of these basic standards of instructional sufficiency is apparent. The accused’s only hope in escaping the consequences of his lawless actions lay in an adjudication that he lacked mental responsibility. The law officer’s gratuitously inserted comment effectively undercut that defense and placed the question before the court in a grossly unfair light. As he was entitled to have the isssue determined properly, I deem inclusion of the comment necessarily requires reversal.
For the foregoing reasons, I would reverse the board of review and order a rehearing.