(dissenting):
I dissent.
I respectfully disagree with my brothers. In my opinion, there is in this record some evidence of action by the accused in self-defense. The contrary view disregards our holding in United States v Black, 12 USCMA 571, 31 CMR 157, and, in fact, if not in law, brings the Court back full circle to the position which was originally espoused in United States v Straub, 12 USCMA 156, 30 CMR 156, through the device— so oft-condemned — of disregarding the import of the accused’s testimony and a consequent refusal to distinguish between arming one’s self for protection against another’s attack and obtaining a weapon to use as an aggressor. Warren on Homicide, Perm ed, § 151; State v Short, 120 La 187, 45 So 98 (1901); Shannon v State, 35 Texas Crim App 2, 28 SW 687 (1894). I call attention once more to our inability so to find facts at this level, for, as a judge of the law :
“I cannot tell how the truth may be; I say the tale as ’twas said to me.”1
As set forth in the principal opinion, accused, then an eighteen-year-old youth of excellent character and known as a peaceable individual, engaged in a verbal altercation with a fellow soldier, Willie Gray, over the latter’s responsibility for accused’s automobile. Gray was approximately six feet, four inches tall and weighed about two hundred and thirty pounds. Accused was approximately five feet, eleven inches tall and weighed about one hundred and sixty-five pounds.
On March 1, 1962, the disagreement between Gray and Green came to a head and culminated in Green’s use of an epithet toward Gray and the latter’s retaliation with a hard slap.
It is also true that Green left the scene and met a close friend, Waters, whose knife he sought to borrow. Waters testified, however, that accused also stated why he wanted the weapon:
“A. Sir, he said he wanted a knife or something, he said he wanted to go back and talk to Gray about his car. That’s what he told me. He said he wanted to go back and try to talk to him. That’s the words he said.
“Q. Did he say anything about, ‘that’s all I want to do is talk to him’ ?
“A. That’s what he said, sir.”
[Emphasis supplied.]
Further, the evidence establishes that accused proceeded to the post exchange, *551purchased a hunting knife and went to the arms room in which the deceased worked. When he was observed entering the barracks, no weapon was visible, although witnesses noticed a bulge under his sweater. Thereafter, according to the prosecution’s evidence, Green ■ rushed into the arms room, brandishing the knife, and immediately launched an attack upon Gray with the fatal result which led to his trial.
Leaving Gray on the floor of the room, Green ran out, pursued by other soldiers. He tossed his weapon to the ground near the barracks but, when apprehended, still had its sheath in his rear pocket.
Accused elected to testify in his own behalf. After relating his version of the argument which ended with Gray slapping him, Green declared that he unsuccessfully looked for a broom to protect himself against Gray. He met Waters and asked the loan of his knife. Waters replied that “he didn’t have one, and for me to calm down.” Accused told him not to “ ‘get too worried over it; I was not going to bother him, but I was going to talk to him [Gray] about the money.’ ”
Accused went to the post exchange and purchased a knife. As he went back to the company area, he placed the knife and its scabbard on the inside of his pants under his sweater. He entered the barracks and went to the arms room. He described his reception as follows:
“. . . [J]ust as I walked in, Lockett yelled, ‘Get him, Gray,’ and I glanced back at Gray and he was making it towards me and I reached for the knife and he hit me. He hit me twice before I even tried to keep him back off of me.
“After he hit me, I had the knife back like this and he tried to grab my hands, sir, and he had his left hand straight out close up on me and I kept brining [sic] it around and kept hitting over like I was missing his shoulder, sir. Then I pushed him back . . . turn to run, sir, and Turner was between me and the door, then he grabbed me. Gray grabbed me, sir.”
Gray obtained a headlock on accused, “snatched” him back against the gun racks, “the knife pressing against my chest.” The parties fell to the floor. At this point, according to accused, Gray was apparently stabbed in the area of his groin during a struggle over the weapon. He freed his hold on accused’s hand, “and I snatched loose and ran.”
Outside the barracks, accused continued his flight but, as noted above, was quickly apprehended.
Asked the purpose of his visit to the arms room, accused replied:
“Well, I just wanted to talk to him about my car, sir, I didn’t want to hurt him, sir, I had no idea of doing anything to him. I just wanted to talk to him because I didn’t want him pushing me around, sir.”
Gray was “pretty strong” and accused knew he could not “beat him.” Accused was “afraid of the guy” and took the knife “to have something in my protection . . . and I didn’t want him to do anything to' me.” If “he come [sic] up to me I wanted to scare him back.” The knife was “inside my pants” when accused entered the arms room and was not drawn until Gray struck him with his fist. Accused “didn’t have a chance to say anything. ... I walked in and everything went boom, boom, boom, like that.”
In summary, then, the evidence adduced by the United States tends to establish that accused engaged in an argument with Gray, was assaulted; left and deliberately armed himself; and sought out his victim for the purpose of revenge. On the other hand, the accused’s story, supported by Water’s testimony, is that he armed himself only to protect his person against further attack by Gray; that he was afraid of Gray; that he sought Gray out only with the concept of further discussing their differences over accused’s automobile; and that the knife was neither drawn nor used until Gray launched his unprovoked and strenuous attack upon him. In my opinion, this testimony clearly raised the issue of self-defense.
*552In United States v Black, supra, we found the evidence was sufficient to raise an issue of self-defense upon facts almost identical to those now before us. There, Black and Harris were also friends who fell out over a minor difficulty. Harris, a physically powerful individual, asked Black if he desired to fight and emphasized his pugnacious intent by shoving him several times. The incident occurred in front of Black’s locker, and the latter seized a bayonet therefrom, turned, and stabbed Harris. In his pretrial statement, Black alleged fear of his victim and resort to the bayonet to “ ‘scare him away,’ ” followed by its unintentional use.
Here, too, the victim, Gray, was physically powerful — “the strongest man” in his company — outweighing the accused by sixty-five pounds and towering over him by five inches. Instead of merely shoving Green, the victim had slapped him “hard.” And, just as in Black, accused understandably feared the older, larger man. He was never shaken from his testimony that the knife was obtained solely to protect himself against a further assault and that he did not, in fact, draw it from underneath his clothing until he was attacked by Gray. Even then, accused, though subjected to a grueling cross-examination, steadfastly maintained that he intended merely to frighten Gray away and stabbed him unintentionally. That the court-martial attached credence to' his version of the incident is emphasized by the returning of a verdict of involuntary manslaughter, thereby indicating it was unconvinced accused intended to inflict upon his former friend either death or grievous bodily harm.
The record before us is, therefore, essentially the same as that in Black, supra. And the language which we there used, at page 575, should be dispositive here:
“The Government^rgues, however, that the facts clearly show that it was unreasonable for the accused to fear either death or grievous bodily harm at Harris’ hands and that his resort to use' of a dangerous weapon constituted employment of such a brutally excessive force that he was thereby deprived of the right to claim that he acted in self-defense. With regard to the first proposition, reliance is placed on United States v Maxie, 9 USCMA 156, 25 CMR 418. That case does not so hold, for we were there concerned solely with the question whether an accused’s honest but unreasonable belief that the infliction of death or grievous bodily harm was necessary to protect his own life or bodily integrity, i.e., ‘imperfect self-defense’ was sufficient to reduce the crime of murder to that of voluntary manslaughter. In holding that the degree of homicide was not so changed, we specifically adverted to the fact that the law officer had instructed the court members regarding the law of' self-defense.
“Concerning its second contention, it is apparent the Government urges upon us the proposition that.resort to a deadly weapon may never be had in face of a fistic assault. See United States v Straub, 12 USCMA 156, 30 CMR 156. There is no such unqualified rule, for whether an accused, by resort to a weapon, uses excessive force in repelling an assault upon him is dependent upon all of the circumstances and is essentially an issue of fact to be determined by the jury. Lujan v United States, 209 F2d 190 (CA 10th Cir) (1953); Davis v State, 152 Ind 34, 51 NE 928 (1898). As was remarked in the latter case, the adoption of an absolute prohibition against the use of a deadly iveapon to repel an unarmed assault would mean that ‘the assaulted party must stand and take his chances of being knocked down and stamped into a jelly, or of being choked to death, before he can lawfully use a weapon in his defense.’ We agree that such is not the law. Little men, as well as those physically more fortunate, are entitled to take reasonable measures in order to protect themselves.” [Emphasis supplied.]
Emphasis is placed by my brothers on the fact that accused admittedly purchased a weapon and thereafter sought out Gray in the arms room. These facts are undoubtedly true, but what is overlooked is the purpose for which he *553swore the weapon was obtained, i.e., “protection,” and his undoubted right to seek out Gray and attempt an amicable adjustment of their difficulties. Compare State v Bristol, 53 Wyo 304, 84 P2d 757. Concededly, this was use of poor judgment and we, as experienced appellate judges, recognize this at once, but, in gauging the accused’s actions, we must look at them through the eyes of an eighteen-year-old boy of limited intelligence and poor background. So viewed, one can understand that he, as the court-martial found, did obtain the knife and go to Gray only for the purpose concerning which he testified. In any event, it ill behooves us now to weigh his credibility and reject testimony, the like of which we so recently held to raise an issue requiring instructions on self-defense. United States v Black, supra.
In sum, then, I am of the view that the evidence in this case clearly raises an issue of self-defense, demonstrating as it does — by accused’s version — that he resorted to the knife only to protect himself against an extremely powerful person who suddenly attacked him. Perhaps, accused should have anticipated this course of events and stayed away, but his poor judgment does not, if his testimony be accepted, make the homicide less excusable than it was in Black, supra. The instructions on self-defense were, as my brothers concede, erroneous and, as the issue was here presented by the proof, prejudicially so. Accordingly, I register my disagreement with their conclusion.
I would order a rehearing at which the issue of self-defense might be submitted under proper instructions.
Scott, “The Lay of the Last Minstrel.”