(dissenting):
I dissent.
In the case at bar, the law officer initially announced that he would give an instruction on self-defense because he believed it was raised by the evidence. However, after overnight consideration, he reversed his decision, apparently in the belief that such a defense would be inconsistent with the accused’s claim that he was in a mentally incompetent state resulting from a severe blow on the head administered by the victim.1 Defense counsel believed that both instructions should be given in light of the evidence. His specific request for an instruction on self-defense was denied.
The basis for the law officer’s determination in this area was in error for, as my brothers note, inconsistent defenses can be interposed in a criminal case. United States v Snyder, 6 USCMA 692, 21 CMR 14 — see discussion and cases cited at page 696. The majority, however, find that the law officer did not err on the ground that the evidence did not raise the issue of self-defense.
I need not go into a lengthy discussion on the evidence for the majority have done that. It is enough to note that the evidence was at times contradictory and confusing. It is true, as my brothers indicate, that the accused directly testified that he did not open his knife and that he never stabbed anyone at anytime. However, he was unable to remember certain things that happened. In that regard, a court member asked the accused :
“Q. Earlier in your testimony you made a statement to the effect that T did not stab anyone,’ yet you made reference to the fact you did not remember certain things that happened after the fighting sequence, shall we say, or the incident, if you want to call it that. There are certain things you stated you did not remember. Are you saying you do not remember stabbing anyone or are you saying— your direct statement was, T did not stab anyone,’ I believe. Which are you trying to say?
“A. As far as I know, I didn’t stab anyone, sir.”
While talking with the victim, the accused testified he received a sharp blow to the head which dazed him. “I thought part of my head was falling off for a moment — I found out later it was my ear.” Upon being brought to the dispensary, accused was “semiconscious” and “confused.” Approximately seventy-five percent of his ear was separated from his head and he had other injuries to his chest and back. The examining physician opined that “it could have been caused by a blow to the head or a fall. I think it was caused by something other than being in a fight because from being hit on the head he would be like this, but being in a fight, he wouldn’t be confused like he was.”
In United States v Sitren, 16 USCMA 321, 36 CMR 477, this Court said:
“An accused is entitled to have presented instructions relating to *425any defense theory- for which there is evidence in the record. United States v Amie, 7 USCMA 514, 22 CMR 304; United States v Mathis, 15 USCMA 130, 35 CMR 102; United v Bellamy, 15 USCMA 617, 36 CMR 115. As we stated in United States v Smith, 13 USCMA 471, 474, 33 CMR 3:
‘. . . What is contemplated is the affirmative submission of the respective theories, both of the Government and of the accused on trial, to the triers of fact, with lucid guideposts, to the end that they may knowledgeably apply the law to the facts as they find them.’ ”
In my opinion, self-defense is unmistakably raised by the evidence. If the accused is believed, he was viciously struck on the head by the victim or someone prior to taking out his knife. Credibility is a question reserved solely for the fact finders. We have consistently so held. Ae we said in United States v Condron, 17 USCMA 367, 369, 38 CMR 165:
“. . . Our most recent pronouncement on this subject is to be found in United States v Evans, 17 USCMA 238, 38 CMR 36, where, at page 242, we said:
‘Thus, we have long held the test whether an offense is reasonably raised is whether the record contains some evidence to which the military jury may attach credit if it so desires. United States v Jones, 13 USCMA 635, 33 CMR 167; United States v Remele, 13 USCMA 617, 33 CMR 149; United States v Kuefler, 14 USCMA 136, 33 CMR 348. It matters not that the accused is the sole source of his contention. He certainly “has the capacity to testify directly to the intent, knowledge, or other mens rea which fills out and characterizes his acts either as criminal or legally blameless.” United States v Remele, supra, at page 621. And the reasonable character of his testimony is “for the determination of the court-martial, under proper instructions.” United States v Jones, supra, at page 640.’ ”
By refusing to instruct on self-defense, because of the accused’s testimony that “he does not remember doing anything — as a matter of fact, on the stand he testified that he did not stab anybody” — the law officer removed this issue from the consideration of the court as effectively as though he had affirmatively instructed that self-defense was not in issue. This he may not do. Cf. United States v Holly, 18 USCMA 413, 40 CMR 125.
The court-martial was told only that in view of the evidence of the blow to the head, which left Rine in a “dazed, stunned, or semi-conscious condition,” he could not be convicted unless they found that he “was mentally capable of entertaining and did entertain the criminal intent involved in the offense of murder and the lesser included offense of manslaughter.” But what of his right to protect himself following an unwarranted attack which partially tore off his ear? Cf. United States v Black, 12 USCMA 571, 31 CMR 157. The uninstructed members were unaware of this or of any of the other factors involved in self-defense, such as, the fact that the law does not demand detached reflection under pressure of a violent attack or in a fast-moving situation. United States v Smith, 13 USCMA 471, 33 CMR 3; Brown v United States, 256 US 335, 65 L Ed 961, 41 S Ct 501 (1921). These, and the other elements which furnish the basis for self-defense, were set forth in the requested instruction and are attached to the record as appellate exhibit one.
The general rule is well-stated in 40 Am Jur 2d, Homicide, § 155:
“. . . Whether or not a particular homicide is committed in repulsion of an attack, and, if so, justifiably, are questions of fact, not necessarily dependent upon the duration or quality of the reflection by which the act may have been preceded.” [Hickory v United States, *426151 US 303, 38 L Ed 170, 14 S Ct 334 (1894).]
The totality of the circumstances in this case were, in my opinion, of such a nature as to raise a question of fact, for resolution by the court members under proper instructions, as to whether the accused acted in self-defense. While the accused did not directly testify that he was in fear of death or grievous bodily harm, he did state that he was dazed by the blow to his head and could not remember much of what happened thereafter. What his state of mind was at that time is unknown, but in view of the serious nature of his head wound, and the suddenness of the assault, the court could reasonably infer therefrom that he feared further attack and additional grave injuries. Accused’s testimony of what he did recall indicated that his response to this assault was instinctive. No one witnessed the actual stabbing, but two Thai nationals observed that the victim had a beer bottle in his hand just prior to the encounter. One of them testified that the victim threw a beer bottle at the accused as he ran away. Whether the accused should have departed immediately, thereby avoiding further difficulty, is one of the elements to be considered by the court.
In sum then, I believe that the initial aggressive act by the victim, the serious injuries to the accused, and the subsequent affray constitute more than sufficient evidence to raise the issue of self-defense. In such circumstance and especially in light of the defense request, I can only conclude that the law officer erred prejudicially by refusing to instruct on self-defense. United States v Sitren, supra.
I would reverse the decision of the board of review and order a rehearing.
Since this case was argued before this Court prior to issuance of the Supreme Court’s opinion in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), I would grant counsel, defense and Government, the opportunity to brief the issue of the applicability of that opinion to the facts of this case.
When the accused was brought into the dispensary he was in a semiconscious condition.