(dissenting):
The failure to instruct on a lesser offense placed in issue by “sufficient credible evidence” is reversible error, unless the omission is waived by the defense. United States v Farris, 9 USCMA 499, 501, 26 CMR 279; cf. United States v Holley, 5 USCMA 661, 664, 18 CMR 285; United States v Remele, 18 USCMA 617, 33 CMR 149. This record of trial does not contain such evidence.
The accused was charged with breaking into a weapons room with the intent to commit larceny. The room was in the upper part of a two-story aircraft dock; it was partitioned off from a larger area by plywood walls, with chain link fencing stretched across the top to form the ceiling. The room contained “decontamination equipment,” several racks of carbines and .45 caliber pistols, and a chest of ammunition. Testifying in his defense, the accused admitted he entered the room through an opening in the ceiling where the fencing had come loose from the wall. He also admitted he stole four pistols and some ammunition. The question on this appeal is whether his testimony also shows that at the time he entered the arms room he had no intention to commit any offense therein.
About a month before the offenses charged, the accused learned that some of the staples securing the fencing to the top of the partition walls of the arms room had been removed. That same night he entered the room. Although he did not specifically say how he made the entry, inferentially, it appears he raised the ceiling fencing at the place where the staples had been removed, and slipped through. The accused said he made the first entry because he was “only curious as to the contents of the room.” About 9:30 on the night he made the entry which led to the present charge, he and two other airmen left their duty section to get “cokes” from a dispensing machine located in a building beyond that which contained the weapons room. The trio allegedly had “some time ... to kill” and “just walk[ed] around on . . . [the] way over to get” the cokes. As they reached the structure housing the arms room the accused, on the “spur of the moment,” left his companions downstairs while he went to the upper level. He testified he was “Just curious” and wanted “To look around.”
After about five minutes of looking around the upstairs section, the accused mounted a table, which was at one of the walls of the arms room, and looked inside the enclosure. By this time he “had decided to go in”; he attempted to get on the wire ceiling but it “was too weak” to support his weight at that point. He, therefore, moved to the other side “where the top had been loosened.” He “opened it up” and went into the arms room. He testified that his reason for entering the room was “Just curiosity.” He said he intended only “to examine” the room and its contents “and then . . . leave.” But after he had looked around for about five minutes, he “decided to take these weapons.” With a screwdriver, which he carried in his hip pocket, he forced the padlock that secured the pistols and removed four from the rack. He also broke the lock on the ammunition chest, and took a number of boxes of .45 caliber ammunition.
According to the accused, he took four pistols because it “was . . . [his] intention to, in a sense, get two of them for the other fellows that were downstairs,” “one for someone else,” and one for himself. He had “a good idea” the others would accept the guns he took for them, but if “they hadn’t . . . [he] would have put them back.” It turned out that they “took” the guns. In fact, they came upstairs as the accused endeavored to leave the weapons room. One of them “got on top and helped . . . [him] out”; the other helped him with the ammunition.
Truth is indeed stranger than fiction. I have no doubt that some of the scientific accomplishments of this century exceed the conceptions of the most imaginative fiction writers of the last century. Nor do I doubt that, with some three billion people inhabiting the world, there are enormous differences *141in individual motivation and conduct; and what is reasonable to one, may be absurd and ridiculous to another. Ordinarily, testimony by an accused to the effect that he entertained a particular state of mind at the time of the commission of the act for which he is being prosecuted “cannot be summarily rejected by a law officer or an appellate court because it does not ring true.” United States v Apple, 2 USCMA 592, 595, 10 CMR 90. In other words, whether an accused’s testimony is true or false rests in the first instance with the court-martial, which must determine his guilt or innocence. A finding of fact, however, must be based upon the probable, not the impossible; upon the reasonable, as it exists in normal, human experience, not upon the unreasonable. “[M]ere possibility,” said the Court of Appeals for the District of Columbia, “is not an affirmative basis for a finding of fact.” Martin v United States, 284 F2d 217 (CA DC Cir) (1960); see also United States v Wright, 6 USCMA 186, 190, 19 CMR 312; United States v Jenkins, 1 USCMA 329, 3 CMR 63.
In framing instructions, the law officer acts on the basis of the evidence. He is expected, and required, to use judgment and discretion in evaluating the evidence to determine the content of his instructions. United States v Lyons, 14 USCMA 67, 33 CMR 279. The patent unreliability of the Government’s witnesses may require him to grant a motion for a finding of not guilty. See United States v Scales, 10 USCMA 326, 27 CMR 400. “A conviction,” observes the Manual for Courts-Martial, “cannot be sustained solely on the self-contradictory testimony of a particular witness ... if the contradiction is not adequately explained by the witness in his testimony.” Manual for Courts-Martial, United States, 1951, paragraph 153a. And, in a sex prosecution, or in the case of testimony by an accomplice, a conviction cannot rest on the uncorroborated testimony of the victim or the accomplice “if such testimony is self-contradictory, uncertain, or improbable.” (Emphasis supplied.) Ibid; United States v Zeigler, 12 USCMA 604, 31 CMR 190. Beyond these situations is the fundamental rule that the evidence must show a reasonable doubt of guilt, not merely “some degree of doubt” to justify acquittal. Green v United States, 289 F2d 765, 766 (CA DC Cir) (1961) ; see also United States v O’Neal, 1 USCMA 138, 144, 2 CMR 44. All the rules point to the conclusion that an appellate court can demand no more from a law officer than what is reasonable under the circumstances. It has been noted that if we cannot say “on the record as we find it that reasonable men must necessarily have found one way or the other,” there is no issue for the consideration of the triers of fact. Martin v United States, supra, page 220. Manifestly, the law officer is not required to instruct on a nonexistent issue of fact. United States v Bistram, 11 USCMA 345, 29 CMR 161; United States v Ferenczi, 10 USCMA 3, 27 CMR 77. Consequently, in reviewing a claim of prejudice because of an alleged error in the instruction, an appellate court may consider whether the evidence relied upon to support the claim is “inherently unbelievable.” See McAbee v United States, 294 F2d 703, 706 (CA DC Cir) (1961).
The accused’s contention that he entered the weapons room only out of curiosity is so inconsistent with all the other evidence in the case “as to stamp the claim as inherently unbelievable.” United States v Bistram, supra, page 347. Just as a shred of evidence of guilt is not enough to sustain a conviction, a shred of evidence as to a lesser offense is not enough to require an instruction thereon. See United States v Backley, 2 USCMA 496, 9 CMR 126. In the absence of a request, the law officer was justified in not giving an instruction on the lesser offense of unlawful entry. United States v Bistram, supra; United States v Holley, supra; McAbee v United States, supra.
I would affirm the decision of the board of review.