(dissenting):
Instructions are meaningful only in the light of the actual evidence. A correct instruction may result in prejudicial error if it does not adequately cover the specific issue raised by the evidence. Conversely, an incorrect instruction may be harmless if there is no issue in the case to which it relates.
Here, the evidence shows a sharp division as to what happened between the victim and the accused. The two had a scuffle which ended when the victim left the room; as he left, the accused remarked, “ ‘I’ll kill you when you get back.’ ” The victim testified that when he returned, the accused immediately approached and struck at him with a hammer hitting him on the side of the head. The accused testified he was at his locker when the victim entered; and that the victim rushed at him and attempted to take away a hammer which the accused was preparing to put into his locker. He further testified that he had no intention of striking the victim and that the victim must have been injured in his attempt to take the hammer.
In view of the conflict as to the cause of the injury, there is, in my opinion, no need to be concerned with whether there was culpable or simple negligence. The degree of negligence is just not raised by the evidence. The important thing is that the court-martial was instructed that accidental injury is a defense, and that the accused’s version of the incident raised that defense. In the two versions of the event, there was no room for the court-martial to consider whether the accused was negligent. The accused was either defending himself against the victim’s attack, or he was lying and he assaulted the victim, as the latter testified. In my opinion, there is nothing in the challenged instruction which could reasonably mislead the court-martial, to the accused’s prejudice, in its deliberations on his guilt or innocence.
I would affirm the decision of the board of review.