(concurring in part and dissenting in part):
I concur in part and dissent in part.
I agree with the majority in this case that the law officer did not err by not instructing on the defense theory that the accused believed he was justified in killing the victim on the ground he was a Viet Cong. The Articles of the Geneva Convention Relative to the Treatment of Prisoners of War and the Protection of Civilian Persons in Time of War (6 UST 3316, 3320, et seq, TIAS 3364, and 6 UST 3516, 3520, et seq, TIAS 3365, August 12, 1949) adequately spell out the humane manner in which we, as a nation, have agreed to conduct ourselves toward persons in these categories. If we hope to be accorded similar treatment we must ourselves adhere to these principles.
I do not, however, agree that the law officer did not err in denying a defense request for character instructions. I believe that the principle established in United States v Mathis, 17 USCMA 205, 38 CMR 3, is applicable here and would reverse this conviction.
The accused was found guilty by a general court-martial, convened at Chu Lai, Vietnam, of premeditated murder. He was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for life, and reduction to the pay grade of E-l. Intermediate authorities affirmed the findings and sentence, with a reduction of the period of confinement to twenty-five years.
On the day in question, accused was in- charge of a four-man patrol commonly referred to as a hunter-killer team designed to ambush and kill Viet Cong. Specifically included as targets were anyone seen carrying a weapon at any time, as well as anyone found outside at night, whether armed or not. An ambush site was set up in the early morning hours. At dawn, fearing exposure, the patrol moved to another location. As they were leaving the area, the accused entered a nearby house where he found a Vietnamese male. He took the man outside, proceeded with him down the trail about sixty meters where he shot him with his rifle.
The accused testified under oath and detailed his rather extensive participation in combat operations in Vietnam, beginning with his arrival as a member of an amphibious landing operation denominated Operation Double Eagle Phase I in January 1966. This was followed by Phase II of the same operation after which the accused was evacuated to a naval hospital in Japan suffering from an acute case of gastroenteritis. He returned three weeks later and participated in Operations Hotsprings, Wyoming, and Kansas. After Kansas, his battalion was located in “the sandpit” on Marble Mountain for a period of time until Operation Bucks. It was in this last-named encounter that he lost two very close friends under rather unnerving conditions. While he had seen many men die in combat, this, according to accused, upset him the most. The unit then returned to the sandpit from where it operated various patrols and ambushes.1
On the day prior to the occurrence of the charged offense he visited another friend in a field hospital who “had had his guts blown out.” After leaving the hospital he started to feel sick and returned to his unit where he immediately volunteered for a patrol. The patrol was uneventful and when he learned that the platoon commander was looking for volunteers for a hunter-killer team, he was the first to ask to go. He stated that he thought he “knew the area and could get a VC.” The platoon commander *139tried to talk him out of going and told him it was almost suicide. Nevertheless, he persisted and was placed in charge of the four-man unit. The ambush was set up near a village at about 3:30 a. m. During the hours of darkness nothing occurred and the accused related that he began thinking about his friends and comrades and how they looked in death or when injured. The memories haunted him and to some extent he began to hallucinate. While in the ambush he noticed a light go on in a house. As time wore on he realized that the light continued to burn and “then it hit me. It was a signal. There was a VC in that house. And so, and so I just ... it was about, about getting light, so I motioned to the patrol to get up. I wanted to get to that house. I had to kill a VC for those guys, I just had to kill one. And during when I was walking towards the house, some of the men mentioned something about my saying I had to kill a ‘gook.’ I don’t remember this but I probably did, and I went to the house and there was a man in there, so I went to the door of the house and pulled the man out. I pulled him out in front of the house and he was pulling out his ID card and was showing it to me but this didn’t matter to me because I had seen many VC before that I’d killed with ID cards on them identical to that. I got him in back of the shirt here and shoved him down the trail, maybe sixty meters or so in front of this Buddist [sic] temple, and I had to kill him. I had to kill a VC. I brought my rifle to my shoulder and shot him.”
On cross-examination, the accused repeated his testimony that “I had to kill a VC.” “I couldn’t sleep at night, I had to help these guys that were dead, I had to do something for them, knowing that their lives weren’t wasted.”
Psychiatric testimony at trial revealed that while the accused had the ability to distinguish right from wrong, his ability to adhere to the right at the time of the offense was impaired because of his emotional involvement and the fact that he was under a considerable amount of emotional tension. A prosecution psychiatrist testified that this impairment was of some degree, but by no means total. A defense psychiatrist found the impairment to be of a significant nature but not amounting to what is classified as a psychosis.
In addition, the defense presented testimony bearing on the character of the accused. He was classified by his then platoon commander as the best rocket gunner in the unit; a trustworthy marine; one who stood up well in combat and did a real good job. “At times I have seen him stand up while people were shooting at him and fire his rocket.” The commander had been on a number of patrols with the accused (“[h]e was the person we had to call up to spot targets”), and had sent him on the fatal hunter-killer operation.
Based on this and other similar testimony, defense counsel requested an instruction on character testimony. The law officer denied the request without comment.
In the early case of United States v Browning, 1 USCMA 599, 601, 5 CMR 27, we observed that:
“. . . [C]ourts have repeatedly held to be reversible error a refusal to charge the jury that evidence of good character alone may be sufficient to warrant acquittal, even though evidence of guilt may be convincing. Edgington v United States, 164 US 361, 41 L ed 467, 11 S Ct 72; Egan v United States, 287 F 958 (CA DC Cir); Jones v United States, 289 F 536 (CA DC Cir).... Wigmore goes so far as to say that evidence of good soldierly character is even stronger than the customary evidence of good general character. Wigmore, Evidence, 3d ed, § 59.”
Similarly in United States v Barn-hill, 13 USCMA 647, 649, 33 CMR 179, we said:
“Evidence of good character and military proficiency is admissible on the merits and, under the circumstances of the case, may itself be sufficient to raise a reasonable doubt *140that the accused committed the offenses charged. United States v Johnson, 3 USCMA 709, 14 CMR 127; United States v McPhail, 10 USCMA 49, 27 CMR 123.” [Emphasis supplied.]
See also Manual for Courts-Martial, United States, 1951, paragraph 138/ (2); United States v Harrell, 9 USCMA 279, 26 CMR 59; United States v Sweeney, 14 USCMA 599, 34 CMR 379; United States v Conrad, 15 USCMA 439, 35 CMR 411; United States v Sitren, 16 USCMA 321, 36 CMR 477; United States v Flippen, 16 USCMA 622, 37 CMR 242; United States v Pond, 17 USCMA 219, 38 CMR 17.
An instruction on this issue is of particular importance where, as here, the question of an accused’s mental responsibility has been raised. As we stated in United States v Cooper, 15 USCMA 322, 326, 35 CMR 294:
“Accused having presented evidence of his good character and the intended instruction not having been delivered to the court prior to its return of findings of guilty, it is apparent that prejudicial error was committed, particularly in light of the substantial issue which existed regarding accused’s mental responsibility for the alleged acts.”
Most recently in United States v Mathis, supra, we held the law officer's refusal to give an instruction relating to good character to be prejudicial error. I believe Mathis to be directly in point with the case at bar.
Mathis too was charged with, and convicted of, premeditated murder. The evidence reflected that following a consensual homosexual encounter, Mathis felt impelled to kill his co-actor. During a struggle he repeatedly stabbed the victim with a knife and while the latter lay on the ground, Mathis went approximately ninety feet to get a rock, which he used to squash the victim’s head. Thereafter, he carried away the rock to hide it. While the law officer gave an instruction on mental responsibility, he reversed his previous position that he would also instruct on good character, saying:
“‘THE LAW OFFICER: Before we call back the court we will have now a short continuation of this hearing. Now, I have read over the proposed character instructions and it says “such evidence may indicate to you that it is impossible that a person of good character would commit the crime charged.” There is no doubt in this case, Major Dribben, that the accused has committed the act?
“ ‘THE DEFENSE: No sir.
“ ‘THE LAW OFFICER: So it is not a question of whether he has committed or not but his mental responsibility; so I don’t think character is a proper instruction and I reverse myself 180 degrees and I will not give that request.’ ” [Ibid., at pages 207-208.] [Emphasis supplied.]
In commenting on this colloquy we noted, at page 208:
“The error in the law officer’s rationale, clearly revealed by this colloquy, is that not every homicide amounts to a crime and it is only the former which is admitted by the defense. That a crime of any degree was committed is a conclusion they totally reject.”
My brothers attempt to distinguish our position in Mathis on the ground that in this ease “the appellant’s in-court testimony — absent any legally accepted defense — amounted to a judicial confession of the crime charged.” Citing United States v Dodge, 3 USCMA 158, 11 CMR 158, they hold that “once the crime is admitted, character evidence, on the question of innocence or guilt, is of no effect. Cf. United States v Mc-Phail, 10 USCMA 49, 27 CMR 123.” But Dodge is inapposite for the issue of that accused’s mental responsibility was not in evidence. All homicides are not crimes.
Mathis also testified at his trial and there was no contest as to the factual issue of the homicide. His *141sanity was in issue, testimony for both sides making it a controverted question of fact. Mathis’ defense was directed primarily toward his feeling that he was impelled to kill the victim because of his hatred for homosexuals. It was this hatred, allegedly, which caused him to commit the homicide. The jury had to find that Mathis premeditated his act and as we said therein, “good character alone is sufficient to provide a reasonable doubt as to guilt.”
In this case the accused admitted the homicide and testified that “he had to kill a VC” in order to avenge the deaths and injuries of his friends. He believed the man he shot to be a Viet Cong because he was signalling in the night. His mental responsibility, as it might affect the question of criminal intent, was placed in issue. Failure to instruct on the effect of good character evidence was, in my opinion, prejudicial error. United States v Mathis and United States v Cooper, both supra.
I would reverse the decision of the board of review and order a rehearing.
The “sandpit” was described by the accused’s platoon commander as a “big stretch of open sand, fairly hot. There are holes dug in the ground and ponchos for shelter and we ate c-rations.”