(dissenting):
I dissent.
An instruction on a lesser included offense is required where there is in the record “some evidence to which the military jury may attach credit if it so desires. United States v Jones, 13 USCMA 635, 33 CMR 167 (1963); United States v Remele, 13 USCMA 617, 33 CMR 149 (1963); United States v Kuefler, 14 USCMA 136, 33 CMR 348 (1963).” United States v Evans, 17 USCMA 238, 242, 38 CMR 36 (1967). As the Chief Judge, writing for the Court, stated in United States v Bairos, 18 USCMA 15, 17, 39 CMR 15 (1968):
“Every offense reasonably raised by the evidence must be the subject of proper instructions; and any doubt as to the sufficiency of the evidence to require instruction should be resolved in the accused’s favor. United States v Floyd, 2 USCMA 183, 7 CMR 59 (1953). Primary responsibility for the adequacy and appropriateness of the instructions rests upon the law officer. Article 51(c), Code, supra, 10 USC §851; United States v Ginn, 1 USCMA 453, 4 CMR 45 (1952); United States v Nickoson, 15 USCMA 340, 35 CMR 312 (1965). His instructions must include every issue as to which there is competent evidence in the record. United States v Flippen, 16 USCMA 622, 37 CMR 242 (1967).” [Emphasis supplied.]
*231The activities of the accused and the victim Graves, immediately prior to the incident, are unclear and the precise manner in which the victim was stabbed is more speculative than certain. Fischesser, the only eyewitness, testified that Martinez had imbibed a substantial quantity of alcohol, as had Graves, and as they walked behind Fischesser “they were more or less holding each other up. They had their arms around each other.” Being good friends, the two men were talking and laughing and discussing certain aspects of cooking. Martinez staggered as he walked and at one point he slipped and almost fell to the ground but was assisted in standing upright by Graves. Concerning the incident itself, Fisch-esser testified:
“. . . To me, this is what it seemed to me, Martinez had lost his balance because of him being so drunk, and when he did this, Shorty had tried to make his move to get up, and this is when Johnny came down, Martinez came down with a punching movement with his hand.
“Q [TC] Which hand?
“A His right hand. And I thought he was just punching him in the chest. I couldn’t tell. I didn’t actually see anything. All I could see was his hand going down in a jabbing motion. And then Graves had pushed him back, and Martinez had fell back on his butt, on his rear end, whatever you say. And Graves had jumped up and started to run, and he slipped. He almost fell, you know, he caught himself back up, and pushed himself back up, and ran across the street. This is another thing that made me think nothing was wrong with him. Neither one of them made a scream, or nothing.”
At the very minimum, the above-mentioned testimony constitutes some evidence that the accused intended neither to kill Graves nor to cause him great bodily harm. From this evidence a body of reasonable men could legitimately conclude that the accused did not intentionally stab his friend with whom he had been walking and talking only seconds before. In fact, the accused himself suffered a badly cut hand in the encounter. A tourniquet was applied to his arm by Fisch-esser and the wound was later treated at the base hospital. The accused, who testified that he had no recollection of the events which transpired, had no prior convictions by military courts.
We are not here concerned with the sufficiency of the evidence to support the findings made by the court-martial, but with a definite procedural error, i. e., a refusal to instruct on an offense reasonably raised by the evidence. Cf. United States v Patterson, 14 USCMA 441, 34 CMR 221 (1964). The measuring rod as to whether a lesser included offense has been placed in issue is not whether there is a plenitude of proof in the transcript to sustain the verdict of the court-martial (United States v Moore, 16 USCMA 375, 36 CMR 531 (1966)) but whether there is some evidence to raise the issue. The degree of guilt, if any, is exclusively a question for the fact finders to determine under proper instructions. United States v Moore, supra; United States v Evans, 17 USCMA 238, 38 CMR 36 (1967). See also United States v Kuefler, 14 USCMA 136, 33 CMR 348 (1963), and cases cited at pages 138-139. As this Court stated in United States v Judd, 11 USCMA 164, 168, 28 CMR 388 (1960) :
“. . . [T]he amount of evidence required to raise an issue for instruction purposes is less than the amount of evidence required to support a finding of guilty. There may be enough evidence to require an instruction, yet not enough to justify affirmance of a conviction of guilt beyond a reasonable doubt.”
In a prosecution and conviction for first degree murder, the court said in Belton v United States, 382 F2d 150, 155 (CA DC Cir) (1967):
“We agree with counsel that an accused is entitled to an instruction on manslaughter if there is ‘any evidence fairly tending to bear upon the issue of manslaughter,’ *232however weak, and that the court may not intrude on the province of the jury which may find credibility in testimony that the judge may consider completely overborne by the ‘simply overwhelming’ evidence of the prosecutor. Stevenson v United States, 162 US 313, 315, 323, 16 S Ct 839, 40 L Ed 980 (1896); see Kinard v United States, 68 App DC 250, 253-254, 96 F2d 522, 525-526 (1938).”
In the case at bar, the law officer instructed the court that, in the event it did not believe that the accused was attempting to rob the victim, it could, on the evidence before it, return a finding that he was guilty of the lesser offense of assault with a dangerous weapon. He declined, as noted, defense counsel’s request that the court also be instructed that, in the event it found the victim’s death resulted as a consequence of an assault with a deadly weapon, it could find, as a corollary, that the accused was guilty of involuntary manslaughter, under Article 119, Uniform Code of Military Justice, 10 USC § 919, a lesser included offense to the charge of murder while attempting robbery.
A distinctly similar situation was before this Court in United States v Taylor, 16 USCMA 489, 37 CMR 109 (1967), where the accused, out on a drunken spree, involved himself in a rumble between other soldiers in his unit and, in the course of the fight, seized and stabbed the victim. He was convicted of unpremeditated murder. Because the accused testified that he entered the fight only with the intent of breaking it up and expressly denied any intent to kill or inflict grievous bodily harm and, in fact, stated he did not even remember stabbing the victim, we reversed for failure of the law officer to instruct on the lesser offense of involuntary manslaughter. As we said in Taylor, at page 490:
“The foregoing [testimony of the accused] presents some evidence from which the members of the court-martial could infer accused, although engaged in an assault upon his victim, neither intended to inflict death or grievous bodily harm. Hence, he was, as appellate defense counsel contend, entitled to have the lesser included offense of involuntary manslaughter submitted to the fact finders on the theory death occurred while accused was ‘perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 118), directly affecting the person.’ Code, supra, Article 119, 10 USC §919; United States v Moore, 16 USCMA 375, 377, 36 CMR 531 (1966).”
Because I believe that the lesser included offense of involuntary manslaughter was raised by the evidence, I would hold the law officer’s refusal to instruct thereon as prejudicial error. I would reverse the decision of the Court of Military Review and direct that a rehearing may be ordered.