(dissenting):
Considering the accused’s own version of the events, I am unable to see how it adds up to anything but a criminal homicide. In its most favorable light, his story compels the conclusion that he got the gun as an “equalizer”; in its worst light, it shows he set the stage for the victim’s death. See United States v Green, 13 USCMA 545, 549, 33 CMR 77. Briefly, this is the story.
Sometime after Christmas, Wither-spoon told the accused he would not “bother” him “anymore on the base,” but would wait until he caught him outside at which time he would beat him “to death.” On January 31, Wither-spoon had his first meeting with the accused off the base. Despite his repeated threats during the month, all he did, in the accused's own words, was the following:
“He knocked me against the top of the roof of . . . [Sue’s] car, I believe it was. Then he grabbed my front of my shirt and pulled me where I was over the car. I sorta put my foot on the inside of the panel of the car to keep all my weight from being on my shirt. He was hitting me and telling me to fight, cussing me, and calling me names. I kept telling him I didn’t want any trouble, to leave me alone.”
It is worth noting the accused did not maintain he suffered any injury as a result of the beating, which a defense witness described as merely “slapp[ing] him around in a sort of boisterous, show-off way”; also, he made no report of the incident, although he had not hesitated to complain about other matters.
*107On February 2, the accused went from the base to his home, a distance of about eighty-five miles, to get the gun with which he later shot Wither-spoon. On February 8, he arranged for a date with Sue, who, a few days; before, had broken off their engagement. When Sue arrived in her car, Airman Moran asked her for a lift to his girl friend’s house. Sue agreed to take him. When the accused got into the car he took over the driver’s seat. Unknown to Sue and Moran, he placed his gun, which was fully loaded, on the floorboard of the car near his seat. Instead of taking Moran directly to his girl friend’s house, the accused drove around town for a while; and then proceeded to a drive-in restaurant which he knew was frequented by Wither-spoon. In any event, he appeared on the scene; and when he did, the accused took the occasion to kiss Sue. Witherspoon looked “mad.” When the accused left the drive-in, Witherspoon followed calling out obscenities and inviting the accused to fight. What transpired after the two cars stopped is related by the accused as follows:
“Q. [IDC] What happened after that?
“A. He was still cussing me and trying to get the door open. I was backing away from him; I was trying to avoid his blows and was get-., ting over on Miss Yolsch, leaning over on her. All this time he was hitting on me. He succeeded in getting the door open and I braced myself on the side of the car. All the windows were down; he started pull- . ing me out of the car. I saw he was going to pull me out and he just sorta went wild. I was trying to keep him from forcing me out of the car. I had my left arm over the door in the back and my right arm was on the . door on my side.
“Q. Did you have anything in your hands ?
“A. Yes, sir, I did. When I saw he was going to pull me from the car, I reached to the floorboard and got my pistol.
“Q. Airman Garmon, yon told the court' what he said to you after he had you out of the car. What was going on during the time with reference to you and Witherspoon?
“A. I was trying to get away from him, sir.
“Q. Where did he have you?
“A. He had me by my shirt and was hitting me with his right hand, by the shirt with his left hand and hitting me with his right hand.
“Q. What was the result of his blows?
“A. It just happened in a matter of seconds, it didn’t take very long; I know he hit me several times, but the length of time I was out of the car was a matter of seconds; I was trying to get away from him.
“Q. Tell the court how you got away from him?
“Á. I swung at him with the gun, and I didn’t known if I hit him or not. I sorta jerked myself back and we separated a few feet. He jumped at me again, just as I got away from him, he jumped at me again, and I fired the gun.
“Q. What did you do then?
“A. As soon as I fired the gun, I wheeled around and ran to the car, got in the car and left the scene, sir.
“Q. He had hold of you ever since he ran up to the car and stuck his hand in the car?
“A. Yes, sir.
“Q. When was the first time he turned you loose on that occasion?
“A. When I struck at him.
“Q. After you struck him, tell the court again what happened.
“A. As I struck at him, it separated us a few feet. As I got free from him just a second, I jumped back and shot at him, what I thought was him. ...
“Q. Where was the gun when you pulled the trigger?
“A. From my hip, sir.
“Q. With reference to the time you pulled the trigger, when you *108knew it was pointed in the direction of Coy Witherspoon, what was your intention?
“A. I was trying to get away, sir.”
Again, it is most significant that the accused did not say anywhere in his extensive testimony that he believed he would suffer bodily harm unless he shot Witherspoon. He simply said that when he pulled the trigger, he was just “trying to get away.” Get away from what — a few slaps in the face and some insults? True, at one point in his testimony, the accused indicated he was “pretty scared and shook up,” but it is apparent that this state of mind resulted from the shooting, not Wither-spoon’s attack.
Here, as in United States v Green, supra, it compellingly appears that after being “humiliated” and “angered” by the victim, the accused armed himself with a deadly weapon in anticipation of meeting his tormentor again, and using the “equalizer.” On the authority of the Green case, I would affirm this conviction. See also United States v Regalado, 13 USCMA 480, 33 CMR 12.
As to the instructions, there is, in my opinion, no fair risk they misled the court-martial. According to the accused, he was pulled from the car by Witherspoon, and was engaged in an active struggle with him, when the shot was fired. Under the circumstances, the doctrine of retreat is inapplicable. Consequently, if there were any deficiencies in the instruction on this point, they did not harm the accused. See my dissent in United States v Hubbard, 13 USCMA 652, 33 CMR 184.