(dissenting);
The undisputed evidence shows the accused told others he had a knife, and that he was going to kill Keahey. He “swore to God” Keahey would “be dead before morning.” Keahey came down to the sleeping compartment to go to bed. He turned on the light, went to his own bunk, and started to remove his jacket. He heard a voice calling out either his name or the name “Stubbs.” He “just turned around” and “didn’t even take a step or anything” when he was cut across the face. Not until later did he know that the person who cut him was the accused; and that the instrument he used to do the cutting was a knife. On this evidence the accused was plainly guilty of a vicious and unprovoked assault. The majority, however, say there is sufficient evidence of self-defense to require an instruction on that issue.
. To reach their conclusion the majority refer to the accused’s statement that he was “afraid” of Keahey. That statement was made about an hour before the incident which resulted in the charge. The majority also refer to differences in the respective personalities and pugilistic abilities of the parties. These circumstances would be entitled to some consideration if there was any evidence to show the accused’s fear of bodily harm moved him to use the knife against Keahey. I have scrutinized the record of trial in vain for such evidence.
I have already referred to the accused’s threats against the victim. There are other significant facts to show incontrovertibly that the accused was the aggressor. The incident did not take place around the accused’s bunk but around Keahey’s. And to get to that place the accused had to leave *388the bunk to which he had retired after he had arranged his own bed to make it seem as though someone was in it. All the evidence is to the effect that Keahey was merely preparing for bed and had had nothing to do with the accused, when the accused called out either his name or the name of Stubbs to attract Keahey’s attention. One witness said Keahey took a step forward after he turned around in response to the call; Keahey testified he “just turned around . . . didn’t even take a step or anything” when he was cut. The difference is unimportant. There is absolutely nothing to show menace in Keahey’s movement; and he testified he didn’t know who called him. There is absolutely nothing to show the accused feared that Keahey’s step forward would culminate in an actual assault against him. On the contrary, the speed of the accused’s own movement, and the fact that he had ready a knife with a bared blade, belie all possibility that he acted out of fear of personal injury.
I agree completely with the law officer that there is a total absence of any evidence justifying an instruction on self-defense. I would therefore answer the certified question in the negative, and return the record of trial to the board of review for further proceedings.