(dissenting):
Evidence of fear of grave injury does not automatically equate to fear of such depth and intensity as to amount to heat of passion. See United States v Snyder, 6 USCMA 692, 697, 21 CMR 14, 19 (1956). The question is whether there is sufficient evidence of fear in this record from which the court members could, under proper instructions, find that accused killed in heat of passion caused by provocation that "would have any reasonable tendency to produce . . . uncontrollable . . . [fear] in the ordinary man.” United States v Bellamy, 15 USCMA 617, 620, 36 CMR 115, 118 (1966).
The accused’s own account of his first meeting with Sergeant Harris in the mess hall office leaves no doubt that his fear of injury at the hands of Harris did not generate uncontrollable passion in him. He took the gun from his locker on the basis of a reasoned conclusion that it would provide a suitable means of persuading Harris not to hit him again, if Harris were to attempt to do so. His decision to go to his assigned work area to avoid another charge of unauthorized absence also negates any idea that he was in the throes of an overwhelming emotion. Similarly, the circumstances immediately preceding the accused’s return to the office for the second and fatal encounter contain no hint of a "fear . . . reachpng] that uncontrollable state which will reduce murder to manslaughter.” United States v Desroe, 6 USCMA 681, 691, 21 CMR 3, 13 (1956). Certainly, the accused did not act out of fear when he left his work table in the kitchen to stand in the doorway of the office; nor is fear apparent in his decision to challenge Harris’ version of the first meeting in the office, which he alleged he overheard. Finally, no hint of fear appears in either the language of the question he put to Sergeant Harris as he stood in the doorway of the office, or in the circumstances under which he presented the question.
We come then to Harris’ movement toward the accused. The accused testified that he saw the baseball bat and he *581believed that if Harris "would come down he could have hit” him. He was "scared” that Harris was going to hit him so, in that instant, he "pulled the gun out and shot” him. Giving this testimony its most expansive effect, it reflects, in my opinion, a "calculated effort to slow up an anticipated attack,” which is an ingredient of self-defense, and does not indicate conduct of one whose "mind [is] befuddled by . . . fear,” the characteristic of heat of passion. United States v Maxie, 9 USCMA 156, 161, 25 CMR 418, 423 (1958). Additionally, I perceive nothing in the evidence to provoke fear of such pervasive and uncontrollable proportions as to "render the mind of a person of ordinary temper incapable of cool reflection.” Id. at 161, 25 CMR at 423!
The accused admitted he knew that Sergeant Harris would not "do anything” if other people were present. He knew several persons were in the office when he decided to apprise them of his version of the earlier encounter with Harris. He also admitted he knew that a desk stood between himself and Harris. True, he maintained that he believed that Harris was "trying to get” him, but in assessing the adequacy of provocation, the question is not how the circumstances appeared to the accused, but how they appeared to a person of ordinary sensibilities. The situation that confronted the accused was like that we considered in United States v Black, 3 USCMA 57, 11 CMR 57 (1953).
In Black, as here, "there were nearby several individuals upon whom the accused could call for assistance; there was present at least one noncommissioned officer charged with the responsibility of maintaining order.” There, as here, the accused purported to be frightened by the movement of the victim, but the victim was killed before he "could make his purpose clear.” Id. at 60, 11 CMR at 60. Thus, Sergeant McGuine testified that Harris was "always talking with something or pointing or waving his hands or something,” and Sergeant Gibby testified that Harris shook the bat as one would "shake your finger.” As in Black, therefore, the movements which the accused asserted generated fear in him were "insufficient to excite in the mind of a reasonable man an uncontrollable passion.” Id. I conclude, therefore, that the trial judge properly denied the defense request for an instruction on voluntary manslaughter. I would affirm the decision of the Court of Military Review.