(dissenting):
The record of trial leaves no doubt that defense counsel construed the instructions on the “intentional doing of the act which caused death and which is inherently dangerous to others” as adequately including the defense theory that a finding of guilty of murder 'under Article 118(3) depended upon whether the accused deliberately pulled the trigger of the gun. The record also leaves no doubt, in my mind, that the court members understood the instructions in the same way.
The instructional pattern was clear: For the offense charged, the court-martial had to find both an intent to kill and premeditation; for the first lesser offense, it had to find an intent to kill without premeditation; for the second type of murder, the court-martial was required to find the accused directed “an inherently dangerous force in such a manner ... as to knowingly hazard the lives of others”; and, finally, for involuntary manslaughter, the court had to be convinced beyond a reasonable doubt that the accused demonstrated “a culpable disregard for the foreseeable consquenees to others” of his actions. In the context of the evidence, the phrase “directing of an inherently dangerous force” did not contemplate a complex of many acts, as the majority maintain, but only the deliberate firing of the pistol. In fact, the majority concede the instruction was offered by the law officer as a specific substitute for that requested by defense counsel, and the latter expressed his agreement with the substitute. See United States v Anderson, 13 USCMA 258, 32 CMR 258; United States v Merrow, 14 USCMA 265, 34 CMR 45. I would, therefore, affirm the decision of the board of review.