(concurring):
I concur.
As I read the principal opinion, it espouses the view that unpremeditated murder, in violation of Uniform Code of Military Justice, Article 118 (2), 10 USC § 918, requires the specific intent to kill or inflict grievous bodily harm,- in order to sustain a conviction. With that conclusion, I unreservedly agree, for it is consistent with our previous holdings regarding the law of homicide and is the state of mind which necessarily distinguishes murder from manslaughter in military law.
Thus, in United States v Moore, 12 USCMA 696, 31 CMR 282, we expressly refused to accept the instructional principle that, if death resulted from the natural and probable consequences of an intentional act, the court members “must infer as a matter of law that he [the accused] intended the infliction of death or grievous bodily harm.” United States v Moore, supra, at page 702. Such an inference of intent, we stated, was permissive only. United States v Ball, 8 USCMA 25, 23 CMR 249; United States v Miller, 8 USCMA 33, 23 CMR 257. In like manner, we pointed out, in United States v Taylor, 16 USCMA 489, 37 CMR 109, that accused’s denial of any intent to kill or inflict grievous bodily harm was, where he concededly caused the death of his victim, sufficient to place involuntary manslaughter in issue. So also in United States v Moore, 16 USCMA 375, 36 CMR 531, we likewise adverted to the need of establishing an actual intent to kill or inflict grievous bodily harm in order to support a conviction of unpremeditated murder rather than involuntary manslaughter. And it is worthy of note that Judge Kilday, concurring in that case, expressly pointed out, at page 379:
“. . . To find him guilty of that offense [unpremeditated murder] 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.” [Emphasis supplied.]
The contrary doctrine, i.e., that only a general intent is required in unpremeditated murder, seems to have grown out of interpretation of some of our early cases dealing with intoxication as a defense to homicide. See United States v Roman, 1 USCMA 244, 2 CMR 150, and United States v Craig, 2 USCMA 650, 10 CMR 148. From the Court’s refusal to accept such as a defense to murder in those cases, the theory has been advanced over the years that, if an accused intentionally does an act, the natural and probable consequences of which are death or grievous bodily harm, it must follow that he intended to cause death or grievous bodily harm — apparently on the basis that one is presumed to in*109tend the natural and probable consequences of his deliberate behavior. But, as we have noted, this syllogistic reasoning is a measure of evidence sufficiency, not a yardstick by which the fact finders are to return a verdict. United States v Ball, supra; United States v Moore, 12 USCMA, supra.
As the Chief Judge states, Congress has provided that the intent to kill or inflict grievous bodily harm is a necessary predicate for conviction of unpremeditated murder and “We have not, and indeed we could not, in view of the language of Article 118,” sanction any instruction which would permit a verdict of guilty to be based on a lesser foundation. Though a man may do an act which will naturally and probably result in serious injury or death, he may subjectively intend far less serious consequences. For the crime to be murder, however, Congress has said he must intend death or grievous harm to result. For that state of mind, we cannot properly substitute a requirement only that he intend the act which ultimately resulted in tragedy. The sufficiency of evidence on which the court may predicate a finding of intent should not be confused with the need to inform the members that the intent must be found as an indispensable prerequisite of guilt of unpremeditated murder in violation of Code, supra, Article 118(2).
Thus, I am in agreement with the Chief Judge that the law officer here erred in denominating to the court-martial an element of unpremeditated murder as a “general” intent. I am equally certain that lack of prejudice from this error may not be found from the balance of the instructions regarding an otherwise uncharacterized intent to kill or inflict grievous bodily harm. Be that as it may, he was not found guilty of unpremeditated murder. The court-martial was carefully and clearly instructed on specific intent and premeditation as elements of premeditated murder, findings of guilty of which it ultimately returned. By such verdict, it necessarily found ae-cused not only specifically intended to kill but that he acted with a premeditated design. In addition, the accused was also, for the same slaying, properly convicted of felony murder, which likewise required a punishment of either life imprisonment or death.
Under these circumstances, therefore, there was no fair risk of harm to him from the instructional error and I join in the affirmance of the board of review’s decision.