(concurring in the result):
I concur in the result announced by Judge Fletcher in his opinion, but I write separately to set forth my analysis of the two issues in this case.
I
As the principal opinion notes, trial defense counsel relied on two evidentiary bas*22es for admission of Sergeant Mack’s testimony that five days after the death of appellant’s wife, appellant told Mack that the death had been an accident.1 First, counsel argued that the statement was a spontaneous exclamation made by appellant to Mack. See para. 142b, Manual for Courts-Martial, United States, 1969 (Revised edition). Alternatively, the defense contended that the statement was admissible to indicate appellant’s state of mind— especially since it reflected appellant’s consciousness of innocence. See para. 142d, Manual, supra. I conclude, however, that under the facts of this case neither of these recognized exceptions to the hearsay rule 2 applies and that, accordingly, the out-of-court statement was inadmissible under that rule.3
A
Paragraph 142b of the 1969 Manual declares:
An utterance concerning the circumstances of a startling event made by a person while he was in such a condition of excitement, shock, or surprise, caused by his participation in or observation of the event, as to warrant a reasonable inference that he made the utterance as an impulsive and instinctive outcome of the event, and not as a result of deliberation or design, is admissible as an exception to the hearsay rule to prove the truth of the matters stated.
(Emphasis added). While the subsequent Manual discussion recognizes that a lapse of time between the startling event and the utterance will not necessarily render the utterance inadmissible, this is so only if, when he spoke, the declarant was still in a condition of excitement, shock, or surprise caused by his participation in or observation of the event. Clearly, the burden falls on the proponent of the evidence to show that at the time of the utterance, the declarant possessed such a state of mind and this burden becomes more difficult as the lapse of time increases between the event and the utterance.
Mil.R.Evid. 803(1) and (2) contain exceptions “similar” to the “spontaneous exclamation” exception in paragraph 142b. See drafters’ Analysis, 8 M.J. CCVII. Mil.R. Evid. 803(1) — “Present sense impression”— excludes from the hearsay rule “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.” (Emphasis added). While a statement like the one appellant made to Sergeant Mack might be encompassed by this rule if it were made contemporaneously with the startling event, I doubt that this hearsay exception contemplates a statement made five days later. Indeed, while the authors of the Military Rules of Evidence Manual recognize that “[t]he term ‘immediately thereafter’ is not [specifically] defined in the Rule or its drafters’ Analysis,” they acknowledge that
[t]o avoid undue extension of this exception, we believe that a statement must be made as soon as the opportunity to speak *23arises. See Wolfson v. Mutual Life Insurance Co. of New York, 455 F.Supp. 82 (M.D.Pa.), aff’d, 588 F.2d 825 (3d Cir. 1978) (one hour is too long a time gap). But see United States v. Blakey, 607 F.2d 779 (7th Cir.1979) (23 minutes is acceptable). The burden is on the person who claims the benefit of this ... exception to show entitlement to it. See United States v. Cain, 587 F.2d 678 (5th Cir.), cert. denied, 440 U.S. 975 [99 S.Ct. 1543, 59 L.Ed.2d 793] (1979).
S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 356 (1981) [hereinafter cited as Saltzburg].
Mil.R.Evid. 803(2) — “Excited utterance” —more closely compares to the Manual’s “spontaneous exclamation” exception. This exception excludes from the hearsay rule of inadmissibility “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” While this provision is more liberal than Mil.R.Evid. 803(1) as to the period of time within which the utterance can be made and still come under the exception, nonetheless, as in the case of paragraph 142b, Manual, supra, the utterance must have been made while the declarant was in the prescribed emotional state. This requirement is vital to the trustworthiness of the evidence admitted under this exception, for “statements made ... while under the stress of excitement” are deemed to “possess inherent reliability. The excitement and associated spontaneity remove an opportunity for calculation.” Saltzburg, supra at 356. On the present record, I am not satisfied that appellant carried his burden of showing that five days after his wife’s death he was still in such a state of excitement and stress as to make his utterance trustworthy.
B
In pertinent part, paragraph 142d, Manual, supra, provided:
If a statement made under circumstances not indicative of insincerity discloses a relevant and then existing motive, intent, or state of mind or body of the person who made the statement, evidence of the statement is admissible for the purpose of proving the motive, intent, or state of mind or body so disclosed.
Subject to the limitations pertaining to the admissibility of confessions or admissions (see 140a), evidence of statements of the accused tending to show a consciousness of guilt is admissible. Evidence of statements of the accused, not made under circumstances indicative of insincerity, tending to show a consciousness of innocence is also admissible, and this is so whether the statement was made before, during, or after the alleged offense.
(Emphasis added).
At first glance it might appear that the “consciousness of innocence” provision in paragraph 142d would permit the reception of appellant’s statement to Sergeant Mack. His remark certainly reflects a “consciousness of innocence,” and the Manual provision expressly includes a statement made after the alleged offense. Moreover, unlike the majority, I can find no evidence in the record which would support the conclusion now imputed to the military judge that appellant’s utterance to Sergeant Mack was “made under circumstances indicative of insincerity.”
However, a fair reading of paragraph 142 d in its entirety implies that the “consciousness of innocence” to which the provision addresses itself is the declarant’s consciousness contemporaneous with the alleged offense — not after some significant interval of time. Indeed, the opening sentence of the paragraph allows admissibility of a statement disclosing a “then existing motive, intent, or state of mind or body” (emphasis added) — not a statement about what the declarant recalls was his “motive, intent, or state of mind or body” at some substantially earlier time. This interpretation of the exception is reinforced by subsequent discussion in paragraph 142d that “[e]videnee of a person’s statement as to his memory or belief of a fact, offered as tend*24ing to prove the fact remembered or believed, is not admissible under the rule pertaining to evidence of statements of motive, intent, or state of mind or body.” Any less restrictive interpretation which would permit an accused, long after the event, to utter a self-serving statement reflecting innocence of motive or intent at the time of the event would undermine the rationale which underpins all the exceptions to the hearsay rule — namely, trustworthiness. See generally Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); United States v. Johnson, 3 M.J. 143 (C.M.A.1977).
In their discussion of Mil.R.Evid. 803(3)— “Then existing mental, emotional, or physical condition” (a rule which the drafters of the Rules believed was “similar to” paragraph 142d of the Manual, see drafter’s Analysis, 8 M.J. CCVII) — the authors of the Military Rules of Evidence Manual took the same view. They commented:
The Rule generally does not permit evidence of present memory or belief to prove the existence of a past condition or fact. The Rule thus follows the Supreme Court’s traditional distinction between statements of present status (including forward-looking statements — see Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 [12 S.Ct. 909, 36 L.Ed. 706] (1892)— which do not present memory problems) and backwards-looking statements which do. See Shepard v. United States, 290 U.S. 96 [54 S.Ct. 22, 78 L.Ed. 196] (1933).
The distinction is illustrated with this example:
Assume the declarant said, “I’m going to miss tomorrow’s morning formation,” and he subsequently failed to appear. This statement may be introduced against the declarant to show his intention to be away. However, if the declarant stated, “I missed yesterday’s formation,” that statement is inadmissible under exception (3) to show that he was not present. A memory problem arises with the second statement.
The same logic applies to statements of existing physical conditions. The declarant’s protestation, “my arm hurts” falls within the exception, while his statement, “my arm hurt yesterday” is excluded when both are offered for their truth.
Saltzburg, supra at 357.
Accordingly, appellant’s statement to Sergeant Mack that his wife’s death five days before had been an accident reflects no more than his recollection of the intent he had possessed five days earlier. As such, it is not admissible to show his “consciousness of innocence” under the circumstances of this case.
C
After concluding that appellant’s remark was inadmissible under any of the recognized hearsay exceptions, the principal opinion then discusses whether the holdings in Chambers v. Mississippi and United States v. Johnson, both supra, required reception of this evidence. To be sure, sometimes evidence which does not fall within a prescribed hearsay exception must be admitted because the circumstances “assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination.” Chambers v. Mississippi, supra 410 U.S. at 299, 93 S.Ct. at 1047, quoted in United States v. Johnson, supra at 147. However, at no time during appellant’s trial did his counsel suggest that the statement of Sergeant Mack should be admitted as highly reliable and trustworthy evidence pertinent to a material issue, even though it did not fit a recognized hearsay exception.4 Moreover, as is apparent from my earlier discussion, no such claim could legitimately be made in the present case. See generally Mil.R.Evid. 803(24) and the drafters’ Analysis at 8 M.J. CCX-CCXI; Saltzburg, supra at 366.
*25II
I am less persuaded than is Judge Fletcher that the evidence of record failed to raise the possibility that the death of appellant’s wife resulted only from his performing a lawful act in a lawful manner. Ferguson testified that he intended merely to scare his wife and to stop her attacks on him long enough to discuss their problems, but that he never intended to use the shotgun as a weapon. Although acknowledging that the accused “testified that everything that night was happening pretty fast,” 15 M.J. 12, 19, the principal opinion declines to infer from this statement any excuse for appellant’s failure to check the safety on the shotgun. On the other hand, I conclude that the members might have drawn such an inference, so I believe that the issue of accident probably was raised by the evidence.
However, even if appellant was entitled to an instruction on accident and even if this was not fairly included in the instructions to the members, appellant was not prejudiced by the omission. By finding appellant guilty of an intentional homicide, the members necessarily concluded affirmatively that appellant “intended] to kill or inflict great bodily harm.” See Article 118(2), Uniform Code of Military Justice, 10 U.S.C. § 918(2). Under such circumstances, it is far more difficult to infer prejudice from the judge’s failure to give an accident instruction than would be the casé if appellant had been convicted of an unintentional homicide, such as involuntary manslaughter or negligent homicide. See my separate opinion in United States v. Thomas, 11 M.J. 315, 318 (C.M.A.1981). Where the findings reflect a failure to find intent, the risk is greater that the members did not properly focus on the possibility of accident than is present when the trier of fact has found such intent to exist.
. If the evidence does not raise the possibility that appellant killed his wife while performing a lawful act in a lawful manner and, therefore, if appellant was not entitled to an accident instruction, as the principal opinion concludes, appellant could not have been prejudiced by the exclusion of Sergeant Mack’s testimony. However, since I am not convinced of the absence of evidence raising this possibility, see Part II of this opinion, I prefer to resolve the first issue in a different way.
. Paragraph 139a, Manual for Courts-Martial, United States, 1969 (Revised edition), in effect . at the time of appellant’s trial, provided:
A statement which is offered in evidence to prove the truth of the matters stated therein, but which was not made by the author when a witness before the court at the hearing in which it is so offered, is hearsay.
Mil.R.Evid. 801(c) similarly defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
. With certain exceptions, see paras. 140-146, Manual, supra, paragraph 139a of the Manual prescribed, “Hearsay may not be recited or otherwise introduced in evidence.” With similar specific exceptions, see Mil.R.Evid. 803 and 804, the Military Rules of Evidence likewise make such out-of-court statements inadmissible. See Mil.R.Evid. 802.
. Neither did defense counsel at any time claim that appellant’s out-of-court statement was not hearsay at all because it was offered as a prior consistent statement to rebut a charge of recent fabrication. See MiLR.Evid. 801(d)(1)(B). Indeed, no such charge was made concerning appellant’s trial testimony.