dissenting:
I agree that the defense of accident or misadventure was not reasonably raised by the evidence and thus the accused was not entitled to an instruction thereon. The accused’s carrying the switch blade knife into the club, and drawing it when the victim confronted him, were deliberate acts, a foreseeable consequence of which might be death or injury of patrons of the club. United States v. Fammer, 14 U.S.C.M.A. 358, 34 C.M.R. 138 (1963). But at most, the accused under these circumstances would be guilty of involuntary manslaughter, a significantly different offense from that for which he was convicted.
In my view, the defense was entitled to meaningful instructions on their theory of the case, namely that the stabbing of the victim was unintentional. Therefore, the problem arises as to whether the court’s instructions on lesser included offenses were adequate for this purpose. As the United States Court of Military Appeals has stated:
The trial judge is more than a mere referee, and as such he is required to assure that the accused receives a fair trial. Advocacy leaves the proceedings at the juncture of instructing the court members. Irrespective of the desires of counsel, the military judge must bear the primary responsibility for assuring that the jury properly is instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law. Simply stated, counsel do not frame issues for the jury; that is the duty of the military judge based upon his evaluation of the testimony related by the witnesses during the trial.
*606United States v. Graves, 1 M.J. 50, 53 (C.M.A.1975).
In this case, I am not persuaded that the instructions on involuntary manslaughter and negligent homicide were adequate in view of the defense theory that the stabbing was unintentional, supported by the accused’s testimony, and in the face of a specific request for an accident instruction.* Accordingly, I would order a rehearing.
United States v. Tucker, 17 U.S.C.M.A. 51, 38 C.M.R. 349 (1968).