(concurring):
I concur with Judge Ferguson in his conclusion that the lesser included offense of involuntary manslaughter was reasonably raised by the evidence and that it was prejudicial error for the law officer to fail to instruct the court-martial on that issue.
Some observations by me on the dissenting opinion seem desirable. In this connection, I shall pretermit a general consideration of the issue of “inherent incredibility,” or to what extent it may exist, in Anglo-American criminal jurisprudence. 32A CJS, Evidence, § 1031(3), et seq. I shall confine myself to the specific issue before us and the observations made in the dissenting opinion. Initially, it must be borne in mind that the question before us arose during the trial on the merits. The dissenting opinion cites three cases to sustain the action of the law officer in failing to instruct on the lesser included offense because the testimony of the appellant that he did not intend to shoot the deceased was “inherently incredible.” The following three cases are cited as sustaining that proposition: Norris v Alabama, 294 US 587, 79 L ed 1074, 55 S Ct 579 (1935); Jackson v United States, 353 F2d 862 (CA DC Cir) (1965); McAbee v United States, 294 F2d 703 (CA DC Cir) (1961).
An examination of Norris v Alabama, supra, reveals that the question there before the Supreme Court did not arise in a trial upon the merits, but upon a motion to quash the indictment upon the ground of exclusion of Negroes from juries in the county in which the indictment was found and to quash the trial venire in the county to which venue had been changed on the same issue. These motions presented an interlocutory question committed to the judge and not to the jury.
In McAbee v United States, supra, the appeal did not involve a trial on the merits but was a motion by the appellant to vacate his conviction, considered some six years after his trial on the merits. The decision of this question was for the judge and not a jury.
In Jackson v United States, supra, the question before the court arose on a motion to suppress evidence secured *379in a search alleged to have been illegal. This, too, was an interlocutory question for the decision of the judge.
That a distinction exists between the question now before us and the question involved in the above-cited cases was specifically recognized by the Court of Appeals of the District of Columbia in Jackson v United States, supra, at page 864, of its opinion, in the following language:
“A distinction seems to exist in reviewing judge-made findings in criminal cases between cases where the judge sits in the place of the jury, with the appellate court reviewing his finding of guilt, and where the judge sits and decides matters which traditionally or by statute have been allocated to him. In the former situations, this court applies the same rule it applies in reviewing criminal jury cases: The conviction must be reversed if it is clear ‘that upon the evidence a reasonable mind could not find guilt beyond a reasonable doubt.’
“When dealing with findings of a judge on issues other than guilt, however, the test for review, as indicated by the Supreme Court, varies. In cases where the lower court acts concerning matters peculiarly within its discretion, a narrow tezt is applied. But fact findings unrelated to the exercise of trial court discretion are subjected to a broader test.”
Appellant was charged with, and convicted of, unpremeditated murder. To find him guilty of that offense it was requisite that the court-martial find, beyond a reasonable doubt, that at the time he fired his rifle appellant entertained the specific intent to kill or to inflict grievous bodily harm. Appellant testified he did not intend to kill the deceased and denied he intended to hit the deceased with the bullet he fired. That the existence of intent is always and invariably the province of the triers of fact and not of the judge (or law officer in a court-martial) is made clear by the language of the Supreme Court in Morissette v United States, 342 US 246, 273, 96 L ed 288, 306 72 S Ct 240 (1952):
“As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.
“Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v Flack, 125 NY 324, 334, 26 NE 267, 11 LRA 807:
‘It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invad-e the province of the other without destroying the significance of trial by court and jury. . .
In Young v United States, 309 F2d 662 (CA DC Cir) (1962), the court had before it an assignment that the trial court erred in failing to give a requested charge on the lesser included offense of simple assault where *380the defendant was charged with assault with intent to commit robbery. In reversing, the court used the following language:
. . However implausible, unreliable or incredible only the jury had the right to make the evaluation of West’s testimony. The evidence of a simple assault cannot be regarded as strong or convincing and perhaps the source could well be regarded as of dubious reliability, but the question of its weight and credibility was for the jury. On West’s testimony it was possible, even if not necessarily plausible, that West was searching the pockets for weapons not money or other valuables. The evidence was sufficient to warrant a jury to infer that West’s intent was to rob, and this intent could be imputed to appellant as an aider and abettor; but it was also sufficient to allow for another permissible verdict, i.e., that appellant was simply assaulting Collins while West searched for weapons. Even when instructed on the lesser included offense of simple assault it would be permissible for the jury to totally disbelieve West or to believe that part which tended to exculpate appellant from an intent to rob. The jury might reasonably conclude that West, by giving this testimony, was trying to do a favor for his friend Young and therefore might reject his explanation as to the object of the search of Collins. But without the critical instruction they would not be afforded the choice which was exclusively a jury choice. The ruling denying the lesser included offense instruction necessarily involved an appraisal of that evidence and West’s credibility by the District Judge but the trier cannot withdraw that appraisal from the jury. Kinard v United States, 68 App DC 250, 96 F2d 522 (1938). See also Stevenson v United States, 162 US 313, 323, 16 S Ct 839, 40 L ed 980 (1896).”
In Kinard v United States and Stevenson v United States, cited by the court in Young v United States, supra, it is interesting to note that both cases were reversed for failure to instruct on the lesser included offense of manslaughter in a trial for murder. A reading of those cases will emphasize the necessity of submitting the issue for the determination of the triers of fact. See also United States v Kuefler, 14 USCMA 136, 33 CMR 348.