Opinion of the Court
Kilday, Judge:
Appellant was arraigned before a general court-martial convened in the Republic of Vietnam charged with two specifications of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918. To each, he entered a plea of not guilty. He was found guilty as charged as to one specification, while of the other he was found guilty of unpremeditated murder — a lesser included offense. He was sentenced to dishonorable discharge, total forfeitures, reduction to the lowest enlisted grade, and life imprisonment. The convening authority approved the sentence. A board of review in the office of the Judge Advocate General of the Army affirmed the findings of guilty and the sentence.
In the first of three granted issues assigned by the appellant in his petition for review, this Court is asked:
Whether the law officer erred in failing to instruct on self-defense as raised by the evidence.
Factual recitation from this transcript of trial depicts the following. On August 29, 1966, Privates First Class Patton and Judah occupied a troop tent at the Phu Lio Base Camp, Republic of Vietnam. On this day, they were visited by two Vietnamese camp workers. While the four looked at a picture album, the appellant entered the tent and picked up a rifle from his bunk. Inserting a clip and chambering a round, he walked past the Vietnamese apparently intending to leave. To an inquiry by Patton, accused stated he was going hunting. Judah expressed the hope Sergeant Condron would do his hunting in the jungle. To this the appellant replied that he could do his hunting right there, simultaneously pointing his rifle at the Vietnamese. When he lowered the weapon, one of the Vietnamese youths informed the accused that he was "no VC" and then sat back on the bunk. The accused in turn pivoted and shot one of the Vietnamese. Patton crawled out the bottom of the tent and ran to the orderly room as more shots were fired. Judah was ordered out of the tent. There is apparent agreement that two groups of shots were fired. Both Vietnamese died from multiple chest wounds.
Additional facts were supplied from the testimony of Specialist Bohocky. This witness heard the firing, ran toward the sound, and saw the appellant standing in a tent entrance. Asked what had happened, accused declared, " 'They jumped me.' " When taken to the orderly room, accused volunteered the comment, " They're dead, they're VC.' "
With the evidentiary presentation completed, instructional matters became the subject of discussion in an out-of-court hearing. Initially, defense counsel saw no issue of self-defense. Later events, however, reflect his change of mind. During a discourse on character instructions, the following colloquy emerged:
"LO: That's normally given only in cases where there is self defense in issue. There is no self defense in issue here and the accused is not stating that these particular individuals did act toward him. I doubt if it would be proper to give this. I don't see what purpose it would be since there is no evidence that they did any act or took any action.
"DC: There is evidence in the statement of the accused to the witness that they jumped him.
"LO: That they what?
"DC: That they jumped him.
"LO: Yes, there is evidence that the accused is alleged to have said that 'They jumped me'. I will make that instruction. I am going to ask you again, do you see any basis for any instruction on self defense? Now the evidence indicates that the accused is alleged to have said 'They jumped me'., We have had some evidence put into the record as to the location of the weapons which would indicate that the weapons were a considerable distance from either of the victims. I'm not going to instruct on the question of self defense. Nothing at all about it. I can't see that it is in issue; it's just not here. Well, I believe that's everything we have covered then."
We are now met with Government counsel's argument that the evidence of record does not raise an issue of self-defense; there being nothing in these facts to which a jury might attach a degree of credence if it so desired. Moreover, counsel see the accused as an aggressor and, therefore, not one entitled to this defense. Lastly, it is averred that such an instruction was affirmatively waived by the defense at the trial level.
The recorded exchange between the law officer and defense counsel reflects neither a renouncement nor an abandonment of this defense theory. Indeed, the law officer's refusal to instruct, made concomitant with his inquiry as to the relevancy of such an instruction, rendered any evaluation by defense counsel a useless exercise permitting not even the semblance of a reply.
Furthermore, where the application of such a doctrine removes a central issue of the case, we are most reluctant to impose waiver. United States v Ebarb, 12 USCMA 715, 31 CMR 301. In the absence of a clear and unquestioned showing of waiver, we are governed by the proposition that the basic responsibility for giving proper instructions rests upon the law officer. United States v Sitren, 16 USCMA 321, 36 CMR 477.
Self-defense is unmistakably raised by the evidence shown in this record. Contrary to the views expressed by appellate Government counsel and by the board of review, reasonableness, i.e., credibility, is a question reserved solely for the fact finders. We have consistently so held. Our most recent pronouncement on this subject is to be found in United States v Evans, 17 USCMA 238, 38 CMR 36, where, at page 242, we said:
"Thus, we have long held the test whether an offense is reasonably raised is whether the record contains some evidence to which the military jury may attach credit if it so desires. United States v Jones, 13 USCMA 635, 33 CMR 167; United States v Remele, 13 USCMA 617, 33 CMR 149; United States v Kuefler, 14 USCMA 136, 33 CMR 348. It matters not that the accused is the sole source of his contention. He certainly 'has the capacity to testify directly to the intent, knowledge, or other mens rea, which fills out and characterizes his acts either as criminal or legally blameless.' United States v Remele, supra, at page 621. And the reasonable character of his testimony is 'for the determination of the court-martial, under proper instructions.' United States v Jones, supra, at page 640. As we said in United States v Kuefler, supra, at page 139:
'So also do trial judges and appellate bodies interfere with the function of the court members and deprive the accused of his right to a primary trial on the facts when the credibility of his claims is found wanting in light of the strong case against him.' "
Any question as to the meaning and purpose of this seeming unambiguous expression should have been eradicated by the further articulation in this same case that "credibility of the evidence is not the test for instructional sufficiency. United States v Kuefler, supra." (Id., at page 243.) See also United States v Ebarb, supra; United States v Goins, 17 USCMA 132, 37 CMR 396; United States v Sheeks, 16 USCMA 430, 37 CMR 50; United States v Smith, 13 USCMA 471, 33 CMR 3. Doubtless, under the circumstances portrayed here, it was an error of reversible proportion for the law officer not to have given such appropriate and needed advice to the court-martial. United States v Evans and United States v Sitren, both supra.
The next issue to be considered is:
Whether the law officer erroneously instructed the court on the consideration of character evidence.
The law officer's instruction emphasizing good character reads:
". . . The defense in this case has introduced evidence as to the accused's good character. The law recognizes that a person of good character is not as likely to commit an offense as is a person of bad character. Evidence of the accused's good character therefore is admissible as tending to show that there is some doubt that the accused committed the offense charged. Considered and weighed alone or connected with the presumption of innocence and all the other evidence in the case, this evidence of the accused's good character may be sufficient to cause a reasonable doubt to remain as to his guilt and warrant an acquittal of the charge."
He continued by advising the court-martial :
". . . On the other hand, the inference of innocence to be drawn from such evidence may be more than offset by the prosecution's evidence of the accused's character or other evidence in the case tending to establish the accused's guilt. As members of the court the final determination as to the weight to be accorded this and all the other evidence in the case rests solely with you." [Emphasis supplied.]
In the eyes of Government counsel, error and prejudice do not exist. These instructions are considered a gratuity, neither party having offered character evidence in this case. Thus, the instructions given are said to relate to only a nonexistent inference of innocence based upon nonexistent evidence.
We are not persuaded by this rationale. The record shows apparent unanimity between trial counsel and the law officer to defense counsel's assertion that at least two witnesses gave testimony relative to appellant's good character. Indeed, the instruction was thereafter given unencumbered by objection.
The board of review strengthens our belief in this regard for they believe that good character was a matter in evidence. Thus, from their viewpoint, the second portion of the instruction was in error, though deemed nonprejudicial.
If the word "bad" is inserted between the words "accused's character," found in the second portion of the above-quoted instruction, it becomes substantially the same as the instruction given in the case of United States v Reloza, 16 USCMA 389, 37 CMR 9. With or without this addition, the implication in both is identical. Evidence that "offsets" good character is evidence that emphasizes bad character. With or without the missing word, both instructions are intended to, and most assuredly do, convey the same singular thought. It is the emphasized "offset" that gives explicit meaning to the instruction before us. We see, therefore, no substantial difference in effect between the instruction given here as compared to that given in United States v Reloza, supra. In light of our holding, this instruction must be considered misleading and preju- dicially erroneous, just as it was in Reloza. '
The third and final assignment of error is based upon the law officer's instruction on sentence wherein he noted that if the court adjudged life imprisonment it should include a dishonorable discharge and total forfeitures as a part of the sentence. It is urged by defense that this is prejudicial comment on the sentence.
Contrariwise, the Government argues, in part, that the balance of the instruction safely left the matter to the court's discretion. Where the truth lies, we need not decide for the entire problem may be obviated by a more certain and meaningful choice of language at the rehearing which, as we have noted, is required by the errors previously discussed. See United States v Jones, 10 USCMA 122, 27 CMR 196, and cases cited therein.
The findings of guilty and the sentence are set aside. The decision of the board of review is reversed and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Judge Ferguson concurs.