(dissenting):
It is apparent from the defense counsel’s cross-examination of the Government witnesses, and the testimony of the defense witnesses, that the defense case was based on two theories. First, was the idea that the manner in which the assault was committed showed the attacker did not intend to effect penetration by force. The second theory advanced was that some person other than the accused committed the assault. Both theories were reviewed at length in defense counsel’s closing argument. He said:
“. . . Let’s assume for a minute to begin with that the accused’s identity had been established in this ease, that the witnesses that you heard— the victim of the case and her friend —had definitely established the identity of this accused as the person who made the attack. Let’s assume that this point is not in question, and let’s see then whether you could find the accused guilty of assault with intent to commit rape beyond a reasonable doubt.
“We have evidence that Miss Pa-rellada was hit. This, I assume, is an assault consummated by a battery. However, the circumstances surrounding this assault do not suggest beyond a reasonable doubt that his assault was done with intent to commit rape.
“I’d like for you to recall the testimony of Miss Parellada, that she remained seated the entire time the assailant was there; the assailant did not request her to stand up; he did not lift her up; he did not direct that she move in any more favorable position; he did not try to turn her in any different position. And certainly an act of rape would be impossible in such a position, and yet the prosecution would have you infer from this attack that it was made with intent to commit rape. . . .
“. . . The only thing in this case that would legally sustain a finding of guilty of assault with intent to commit rape is the fact that the accused, in a statement to the OSI, tucked in, almost as a little afterthought to that statement, this concise statement: T was there with the intent to commit rape,’ or something to that effect.
“The accused has taken the stand and told you the circumstances relating to the giving of that statement and, more particularly, for this point in hand, he told you what he believed the OSI told him — what he is confident the OSI implied to him— as to the definition of intent to commit rape.1 Certainly, if we take what the accused thought the OSI was tell*154ing him, this is not the requisite intent to commit rape. ... At the most, as the OSI, we contend, impied [sic] to the accused — told the accused — this is not the intent to sustain a finding of assault with intent to commit rape.
“Again, the most that can be drawn from the circumstances and the entire evidence in the case is that there was an indecent assault upon Miss Parellada, and it is possible that the only logical inference that can be drawn, the only concrete, clear evidence in the case would indicate that there was merely an assault with a consummated battery.
“Now let’s look at another part of the case, and that has to do with the identity of the accused. I think it’s safe to say that but for the statement that the accused gave to the OSI, he would not be in court today for the offense under consideration. In fact, I cannot help but think if I were sitting here in court today with a blond, white client who had been found in that area and who had had on a checkered shirt, I have no doubt but what you gentlemen would and could find him guilty of assault with intent to commit rape, with or without a confession on his part. And it is amazing to me that the prosecution would now ask you, on the sole basis of a statement given to the OSI, to find this accused, who could not meet the identity of blond, white, and so forth, guilty of the offense for which he is charged.
“Undoubtedly the accused was in the area of building 605 on the night of 15 September 1959. He was caught running from the general area. He voluntarily gave the details of his participation in the incident that night. I contend that the facts are almost overwhelming that the accused gave a correct, true version of what happened on that night when he gave a story to the persons who caught him in the area. Again, I insist that this statement is of more logical credibility because it is part of what we lawyers call the res gestae. . . .
“I again want to point out that too many details of the original statement that the accused gave check out. He says that the other fellow went into the latrine and fixed the lights. The results of the fingerprint test— and that is the only test in this case which is accurate, definitive and not open to question — that test definitely establishes that it was not the accused who unscrewed the light bulbs. That checks out. And I’d like for you to note that in the statement the accused gave the OSI he says that he unscrewed them.
“There is only one other thing in the case that in any way negates the proposition that the person who made the attack was not the accused, and that is there were certain fingernail scrapings taken from under the fingernails of Miss Parellada which contained apparently bits of skin. They were sent to a laboratory. The report came back that they appeared to be characteristic of the Negroid race. They did not say, ‘This is epidermis from a person who is Negroid.’ They didn’t even say, ‘It is characteristic of such epidermis.’ They said, ‘It appears to be characteristic.’ Clearly, they refused to identify it as even one race. Howbeit can you be asked to say it was the accused?
“Also, they said that this skin was admixed with red, white and blue cloth fibers. The blond person who was in this area had a checkered shirt on. One of the colors which has been mentioned was red and white, and there was a dark color. Witness Voss testified it was red and white. Now clearly Miss Parellada says that she fought, bit, struggled with the assailant. And I say that the only way that threads could be admixed with skin epidermis is for *155the two to have taken place at substantially the same time with force and violence so as to admix them.”
At the conclusion of counsel’s argument, the law officer apparently held an out-of-court conference with counsel to consider the instructions. The conference is mentioned in the record of trial, but, except for a matter not relevant to the issue before us, nothing of what transpired is set out. When court was reopened, the law officer gave the court-martial extensive instructions. No objection or request for further instructions was suggested by defense counsel.
Among other things, the law officer advised the court members of the elements of the offense of assault with the intent to gratify lust and sexual desire, and those of assault and battery, as lesser included in the elements of the offense charged. He also instructed the court that it could consider the evidence of accused’s intoxication as it affected his mental capacity to entertain an intent to rape. He told the court that if such consideration left it with a reasonable doubt of the accused’s ability to entertain the intent to rape, it must find him not guilty of the assault charged. No similar instruction was given on the effect of intoxication on the accused’s mental capacity to entertain the intent of the lesser offense of indecent assault. The omission is now advanced as a fatal error requiring reversal of the conviction of the lesser offense of indecent assault.
Government counsel contend that no instruction on the effect of intoxication was required as to the lesser offense of which the accused was convicted. They base their conclusion on two grounds. First, they maintain that evidence of intoxication which falls short of establishing “legal insanity” cannot rebut the presumption of the existence of an intent to gratify lust which is inherent in a completed indecent assault. See United States v Jackson, 6 CMR 390; cf. United States v Headspeth, 2 USCMA 635, 636, 637, 10 CMR 133. Second, they contend that the intent to gratify lust is much less “definitive, specific and complex” than the intent to commit rape, and it, therefore, requires more evidence of intoxication than the latter intent in order to require an instruction. In their opinion, the evidence of intoxication is insufficient to require an instruction as to its effect on the accused’s mental capacity to gratify his lust and sexual desires. It is, however, unnecessary to consider either argument. The nature of the defense at the trial precludes appellate review of the present claim of error.
A substantially similar situation was before us in United States v Bowers, 3 USCMA 615, 14 CMR 33. There, as here, the accused was charged with an offense involving a specific intent. The evidence tended to show the accused was intoxicated. The defense, however, was directed toward showing the accused was not the person who committed the crime. No instruction was given on the effect of intoxication on the “gradations of the crimes involving specific intent.” The accused was convicted. In due course, the conviction was appealed to this Court. The accused contended he was prejudiced by the law officer’s failure to instruct on the effect of intoxication. We held that the theory of the defense at the trial level operated as a bar to the claim of error on appeal. We pointed out that the appellate contention was based upon another and different view of the evidence from that presented at the trial. In part we said:
“There are certain cases wherein an accused elects to make an unqualified selection as to the issues to be submitted and is bound thereby. Particularly is this true when the raising of one doubtful defense will weaken substantially one which has considerable merit. . . .
“We deal here with a record which shows a case well tried. No question of oversight or inadvertence breaks through defending counsel’s trial tactics. A successful appellate system cannot be built if we are to permit an accused to elect one course at the trial level and then, if that *156turns out disastrously, grant him a reversal so that he may have a chance to retry the case on a theory he previously rejected. ... We believe accused is the one who must prevent that dilemma. If he does not want an inconsistent theory injected into the deliberations of the court-martial, he may make that election by stating that he does not want any instructions other than those given, as did counsel in this case. If, however, he desires to take a chance on a verdict of a lesser offense, he should specifically request appropriate instructions so that he cannot complain if they are given.”
Here, in the Bowers case, intoxication was important to the defense, not as an issue affecting his mental capacity, but as a matter of corroboration of his exculpating account of the incident. The matter was presented to contrast the difference between the “real” culprit, whose act concededly amounted to an indecent assault and upon whose breath the victim could detect no odor of alcohol, and the accused who purportedly had “consumed quite a bit of alcohol” and was never inside the building in which the assault took place. In this setting, the law officer’s failure to instruct sua sponte on the effect of intoxication on the intent inherent in an indecent assault is not error prejudicial to the accused. I would, therefore, affirm the decision of the board of review.
Although the accused’s testimony on the meaning of the phrase was offered and received for the limited purpose of contesting the voluntariness of his pretrial statement, it is obvious that defense counsel treated it as bearing *154upon the merits. I need not consider the effect of this enlargement of the purpose of the testimony. See United States v McQuaid, 9 USCMA 563, 26 CMR 343, and United States v Johnpier, 12 USCMA 90, 30 CMR 90.