Opinion
FLETCHER, Judge:Tried by general court martial, the appellant pleaded not guilty to a charge alleging unpremeditated murder, in violation of Article 118, Uniform Cede of Military Justice, 10 U.S.C. § 918. After initial deliberation on findings, the court-martial returned findings of guilty of involuntary manslaughter by culpable negligence, in violation of Article 119, UCMJ, 10 U.S.C. § 919. *316Then, after extensive evidence was presented in mitigation, the court-martial reconsidered its findings and returned findings of guilty of negligent homicide, in violation of Article 134, UCMJ, 10 U.S.C. § 934.1 See United States v. Kick, 7 M.J. 82 (C.M.A. 1979). We granted review of this case (8 M.J. 219) to examine “[wjhether the [military judge’s] instructions on excusable homicide .. . were inadequate and misleading.” In view of the evidence presented to the court members, we conclude that they were.
The appellant was a security policeman. On the day prior to the shooting, he engaged, along with other spectators, in some good-natured teasing of several individuals playing basketball at the base gymnasium. His exchange with the future victim turned bitter and led to a confrontation. As the victim (210 pounds) approached, the appellant, who was on duty, dropped the gun belt which he was wearing. The victim, however, returned toward the playing floor, but upon hearing the appellant’s reproach, turned once again toward him. The appellant (135 pounds) pulled his personal knife. Although no altercation resulted, words were exchanged and the appellant left. Appellant testified to his determination to avoid the victim in the future. This was, however, not to be.
The following evening, the appellant, who was again on duty, entered the dining hall where the victim worked as a cook. Greeting friends, he proceeded to the podium where he signed in for a meal. Meanwhile, the victim, standing there, said, “Yeah, I see you got your shit. You’re going to need it because I’m going to kick your ass.” Appellant responded, “Sure, Cookie, when I’m working you know I have to have one on working.” Thinking the victim had left, the appellant took a step back to get a tray. At this point the victim grabbed the appellant by the back of the neck and the shoulder. According to the appellant, “I turned around and brushed against the wall to my — I turned to my left. He then placed his hand in my jacket collar and was trying to get his right hand — his left hand up in my throat. He almost had me but I moved around to his right, to my left, and turned and kept trying to jerk away to get his hand off my jacket.” The victim continued to say, “You’re going to need your shit, because I’m going to kick your ass.” Unable to break the victim’s hold, the appellant decided to hit him on the shoulder or arm with his gun. “When I pulled the gun, all in the same motion he made a hard jerk on the collar and the gun went off.”
Prior to the members’ deliberations on the merits of the case, the military judge instructed them on the lesser included offenses of voluntary manslaughter, involuntary manslaughter, and negligent homicide; on the alleged offense of unpremeditated murder; and on the defenses of accident and self-defense. We have reviewed all of these instructions, particularly those on self-defense. A close examination reveals that all such instructions focus on a self-defense test which will justify the use of deadly force. Appellant before us rightly complains that the military judge erred in failing to address the self-defense in the use of less than deadly force; that is, the drawing of the weapon for the purpose of using it as a club. Indeed, after the findings of negligent homicide were returned, the defense requested reinstructions on self-defense relating to an unintentional killing, which was denied.
The members, then, were never given the opportunity to entertain self-defense as a justification for drawing the weapon as a club. Nevertheless the Government urges, “While in hindsight, a more detailed instruction as to negligent homicide might have been useful, this theory was not litigated.” This proposition we reject out-of-hand. In fact the appellant’s testimony asserts his intention not to shoot, but to use *317the gun as a club. Under these facts self-defense is raised not only as applied to the prosecution’s theory of intentional shooting, but also to the defense assertion of alternate theories.
The military judge clearly has a sua sponte duty to instruct the court members correctly and fully on all issues raised by the evidence. United States v. Jones, 3 M.J. 279 (C.M.A.1977); United States v. Graves, 1 M.J. 50 (C.M.A.1975); United States v. Smith, 13 U.S.C.M.A. 471, 33 C.M.R. 3 (1963). Under the facts of this record of trial, this military judge failed in his responsibility.
The court members, in arriving at their verdict of negligent homicide, of necessity decided whether the drawing of appellant’s gun was a lawful or negligent act.2 With the sole issue being whether it was lawful for the appellant to draw his gun under the circumstances, the judge’s instructions as they related to negligent homicide were inadequate and misleading. As to negligent homicide, the question becomes whether it was lawful for the appellant to draw his weapon. In instructing the jury, the military judge failed to sufficiently differentiate between the drawing of the weapon versus the use of deadly force; that is, the firing of the weapon. Furthermore, the military judge instructed the members to consider the fact that the appellant was a security policeman who previously received training in the circumstances justifying the use of deadly force. This instruction is misleading because a policeman is often justified in drawing his weapon on an assailant, although he may not be justified in intentionally killing him. In this regard, both Mr. King, a long-term security officer from a nearby civilian police department, and Sergeant Flanagin testified regarding the appropriateness of appellant, as a security policeman, drawing his weapon during attack. Each testified that if subjected to the same situation, he would have drawn his weapon. The military judge was required sua sponte to instruct that they were “expert witnesses.” The judge’s instructions were deficient in that they suggested a great restriction on a security policeman’s right, if not duty, to use superior force in subduing his adversary.
Under these instructions the appellant was limited in his use of force to only that amount which he reasonably believed necessary to protect himself and that he could not use such force as to become the aggressor. The military judge further told the members to consider that there were others in the vicinity who could have come to the appellant’s aid. Contrary to these instructions, appellate defense counsel urge that a policeman, unlike a private citizen, has no duty to retreat from an affray and stand idly by to be beaten up with the attendant risk that his assailant will grab his weapon and kill him with it.3 He further argues that it is a police officer’s duty to protect the public as well as to subdue his adversary, and the presence of others does not relieve him of such duty. We agree with these propositions and view the instructions challenged in this case as insufficient and misleading.
The decision of the United States Air Force Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
. Appellant was sentenced to a bad-conduct discharge, confinement for 1 year, forfeiture of all pay and allowances, and reduction to the lowest pay grade. The convening authority approved the finding and sentence, except for the forfeitures. The intermediate court affirmed.
. We do not address the doctrine of res ipsa loquitur, which has not been accepted in military criminal law. See United States v. Ryan, 3 U.S.C.M.A. 735, 738-39, 14 C.M.R. 153, 156-57 (1954). See also United States v. Bryan, 19 U.S.C.M.A. 184, 187, 41 C.M.R. 184, 187 (1970).
. Mr. King, a policeman for 13 years, testified regarding FBI statistics showing that a majority of policemen killed on duty are shot with their own weapons.