(concurring in the result):
In its brief and oral argument in this Court, the Government took a position that apparently differed materially from that on which it had relied before the United States Navy Court of Military Review. Now it concedes that the military judge erred when, over vigorous defense objection, he instructed the court members on the lesser included offense of assault wherein grievous bodily harm is intentionally inflicted.1 *38Furthermore, during oral argument, Government appellate counsel candidly acknowledged that, if the court members had initially returned a finding of assault, rather than of voluntary manslaughter, the finding could not have been allowed to stand.
However, the Government seeks to escape the effects of its concessions — and to uphold the assault finding — by relying on the Manual provision that “[t]he court may also reconsider any finding of guilty on its own motion at any time before it has first announced the sentence in the case.” Para. 74d (3), Manual for Courts-Martial, United States, 1969 (Revised edition). In this respect, the members of a court-martial have a power which is not shared by Federal criminal jurors, who after returning their verdict have no further role to perform. According to the Government, the power granted court-martial members by paragraph 74d (3) includes the authority to grant clemency to an accused by replacing the findings of guilty originally returned with findings more favorable to the accused — either not guilty or guilty of some lesser included offense. Presumably this leniency would be induced by defense evidence in mitigation and extenuation.
I cannot accept the government’s view that the Manual’s grant to court-martial members of the power to reconsider findings of guilty at any time prior to announcement of sentence was intended to authorize the rendition during pre-sentence proceedings of findings based on mercy and not reasonably related to the evidence before the court members. While it is conceivable that evidence presented during the pre-sentencing portion of a trial might create reasonable doubt on the part of the court members as to some element of an offense of which they had convicted an accused and thereby lead appropriately to reconsideration of the original findings and to new findings more favorable to the accused, nothing of that sort occurred in the case at hand. Instead, the Government speculates that, after the court members had rejected the appellant’s self-defense argument and returned a finding of voluntary manslaughter, they extended leniency to appellant and, because of his evidence in mitigation and extenuation, replaced the original finding with a finding of assault. In my view, any such action by the court members was not contemplated — or authorized — by the Code or by the Manual.
While I am not convinced of the correctness of the government’s concession in the case at hand.2 I have concluded that, under the circumstances of the present case, it may appropriately be accepted. Once accepted, the concession requires dismissal of the charges since the finding of guilty of assault cannot be salvaged by the argument which the Government has presented.
. The situation here is different from that which exists where the instruction as to a lesser included offense leads a jury to find a defendant guilty of an offense of which, according to all the evidence, he could not have been guilty. For example, where the evidence shows that a defendant’s death-inducing conduct was intentional, a judge would err in instructing on involuntary manslaughter, and a verdict of guilty of that offense could be successfully attacked. Cf. State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980). However, in the case at hand there was evidence that appellant was guilty of an assault in which grievous bodily harm was intentionally inflicted; and, if the victim had not died, appellant could appropriately have been convicted of this offense. 1 am not convinced that the absence of dispute at trial as to the issue of causation necessitates the conclusion that the military judge has erred if he instructs the court members on the lesser included offense of assault — at least, in the absence of defense objection. Moreover, these precedents — including those cited by the Court of Military Review — suggest that under such circumstances any error would not be prejudicial; the accused can hardly complain if he is convicted of an offense established by the evidence but less serious than another of which he could have been convicted on the same evidence. Finally, despite the precedents cited by the Court below, I still entertain doubts that, if the finding of assault had initially been returned by the court members, reversal would have been required, even though the defense counsel had objected to the judge’s instructing on that lesser included offense.