Opinion
FLETCHER, Judge:
Appellant was charged with the premeditated murder of his wife “by shooting her with a shotgun in the back,” in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 918. He pleaded not guilty to this charge and a trial on the merits ensued. The members of his general court-martial found him guilty of murder without premeditation by shooting his wife with a shotgun in the back, in violation of Article 118. In May of 1980 he was sentenced to a bad-conduct discharge, 10 years’ confinement at hard labor, and reduction to the lowest enlisted grade. The convening authority approved this sentence and the United States Air Force Court of Military Review affirmed without opinion.
Review was granted on the following issues of law:
I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY REFUSING TO ALLOW THE TESTIMONY OF MASTER SERGEANT MACK REGARDING STATEMENTS OF THE APPELLANT TENDING TO SHOW A CONSCIOUSNESS OF INNOCENCE.
[14]*14II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY REFUSING TO INSTRUCT ON THE DEFENSE OF ACCIDENT.
Resolution of both these issues does not require this Court to find facts, but it is necessary to examine the record of trial for evidence introduced by the parties bearing on these questions. After conducting such an examination, we hold that both questions must be answered in favor of the Government.
I
The first question in this case is whether the military judge erred in refusing to admit testimony from a defense witness concerning an out-of-court statement made by appellant. Article 39(a)(4), UCMJ, 10 U.S.C. § 839(a)(4). The defense requested that Sergeant Mack be allowed to testify that appellant told him that the death of Mrs. Octavia Ferguson was an accident. There is no factual dispute that this conversation took place five days after appellant’s arrest for the charged offense and while he was in pretrial confinement. Both parties also agree that Sergeant Mack was a close personal friend of appellant who was assisting him with his family during this turbulent period. The defense further made an offer of proof that Sergeant Mack believed appellant was sincere in making this statement. The military judge denied the defense request.
Defense counsel argued that there were several evidentiary theories which would justify admission of Sergeant Mack’s testimony concerning the out-of-court statement of appellant. He first asserted that this testimony was admissible because it embraced a spontaneous exclamation made by appellant to Sergeant Mack. See para. 142 b, Manual for Courts-Martial, United States, 1969 (Revised edition). Then, he asserted that this testimony was admissible because it contained evidence of appellant’s state of mind. See para. 142 d, Manual, supra. Finally, he particularized his second theory by asking the military judge to consider that portion of paragraph 142 d concerning admissibility of evidence of statements of an accused tending to show a consciousness of innocence.
In addressing the granted issue, we note that if the defense intended to use the proffered testimony to prove the truth of the assertion contained therein, i.e., the wife’s death was an accident, it was hearsay. Para. 139a, Manual, supra. The spontaneous exclamation exception to the hearsay rule provided in paragraph 142b, Manual, supra, would permit admission of this testimony for this purpose. The military judge, however, ruled that this testimony did not meet the requirements of this exception to the hearsay rule and accordingly it was inadmissible for this purpose. This ruling is not the subject of review in the present case and we do not find it plainly erroneous.
A second evidentiary theory was proffered by the defense to support admission of Sergeant Mack’s testimony concerning appellant’s out-of-court statement. Defense counsel stated that he intended to use this testimony to show appellant’s state of mind five days after the death of his wife. See McCormick’s Handbook On the Law of Evidence §§ 249, 294 (2d ed. 1972) [hereafter cited as McCormick].1 This testimony would still be hearsay if used for this purpose. Its value as to appellant’s state of mind is dependent on the credibility of the out-of-court declarant and the truth of his assertion. See para. 142<J, Manual, supra; [15]*15McCormick, supra. In other words, the mere fact that appellant said his wife’s death was an accident provides no inference as to his state of mind unless one also accepts the fact that he was speaking truthfully. See 2 J. Wigmore, Evidence § 267 (3d ed. 1940).
In order for the military judge to admit this testimony for this evidentiary purpose, it was first necessary to determine whether the state of mind of appellant five days after the alleged offense was a relevant issue in this case. See paras. 142d and 137, Manual, supra. Defense counsel further particularized his purpose in introducing this testimony by indicating that he intended to show that appellant had a consciousness of innocence after the offense, and this fact was relevant to the issue of his guilt of the charged offense. Para. 142d, Manual, supra; 1 Wigmore, Evidence §§ 172-74 (3d ed. 1940); 2 Wigmore, supra at § 293. The military judge did not indicate that he disagreed that this fact was probative as to the issue of appellant’s guilt of the charged offense.2
The second question the military judge had to decide was whether appellant’s out-of-court statement had a tendency to disclose his state of mind as being conscious of his innocence. Paragraph 142d, Manual, supra, provides that such a state of mind on the part of an accused can be shown by statements made by him after the offense. Moreover, his statement that his wife’s death was an accident can be reasonably construed as an assertion on his part that he then believed himself innocent of the charged offense. See generally McCormick, supra at §§ 249 and 294. Again the military judge did not disagree that this statement provided a reasonable inference that five days after the offense appellant believed himself innocent.
The third question confronting the military judge was whether the out-of-court statement of appellant was made under circumstances of probable sincerity. See McCormick, supra at § 294; 2 Wigmore, supra at § 293. Paragraph 142d, Manual states: “Evidence of statements of the accused, not made under circumstances indicative of insincerity, tending to show a consciousness of innocence is also admissible.” (Emphasis added.) This Manual provision reflects the concern of the President that a judicial ruling be made to insure that feigned or artificial conduct or statements not be used as a basis for an inference concerning the accused’s consciousness of innocence. See 2 Wigmore, supra at § 273. It was on this basis that the military judge ruled the testimony of Sergeant Mack inadmissible.3
The military judge, as indicated earlier, denied defense counsel’s request to permit Sergeant Mack to testify as to the out-of-court declaration of appellant. He stated:
Gentlemen, I am convinced by the circumstances contained in the proffer of proof made by the defense that neither of these exceptions to the hearsay rule would apply to the statement made by the accused to Sergeant Mack. I would therefore, rule that the statement is hearsay and would not be admissible. I am [16]*16satisfied that neither of the two grounds — that neither of the two exceptions cited by the defense would be applicable to make this admissible.
Prior to this evidentiary ruling, defense counsel particularly brought to his attention that portion of paragraph 142d, Manual, supra, which permitted the introduction of “[e]vidence of statements of the accused, not made under circumstances indicative of insincerity.” It is clear from the above that the military judge found that this out-of-court statement was not shown to have been made under circumstances of probable sincerity.
Turning to the record of trial before us, we note that there was some evidence that appellant’s statement was made under circumstances not indicative of insincerity. First, the statement was made to a close friend of appellant during a conversation altruistic in nature and unrelated to any official criminal investigation directed against him. Second, the defense offered to show that the defense witness, Sergeant Mack, a person who personally knew appellant, believed he was sincere in his statements. On the other hand, the statement was made by appellant after he was arrested for this offense and while he was in pretrial confinement. Although no immutable principle of law is applicable to these circumstances, we hold the military judge had reason to find the defense failed to meet its burden of proof on this question and no error of law occurred in his decision not to admit this testimony for this purpose. See United States v. Lowry, 2 M.J. 55 (C.M.A.1976).
A final point in deciding the first granted issue is whether the testimony of Sergeant Mack should have been admitted for the reasons stated in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). See United States v. Johnson, 3 M.J. 143 (C.M.A.1977). In general, these cases may be cited for the proposition that the hearsay rules of a particular jurisdiction cannot be mechanistically applied in every case to exclude probative evidence tending to show an accused is not guilty of the charged offense. U.S. Const, amends. V and XIY. We do not believe these decisions dictate admission of Sergeant Mack’s testimony in the present case.
In Chambers v. Mississippi and United States v. Johnson, both supra, the defense sought to introduce in hearsay form evidence that a third party confessed to the crime charged against the accused. Such evidence was considered critical to the accused’s defense. See Chambers v. Mississippi, supra, 410 U.S. at 301-03, 93 S.Ct. at 1048-50, citing United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 2081-82, 29 L.Ed.2d 723 (1971). The defense in the present case sought to introduce in hearsay form a statement from the accused tending to show his consciousness of innocence. Even Dean Wigmore, a major proponent of the introduction of such evidence, concedes it is not to be treated as evidence of much value. 2 Wigmore, supra at § 293.
In addition, in Chambers v. Mississippi and United States v. Johnson, both supra, this evidence was admitted despite the absence of an evidentiary rule permitting its introduction in the jurisdiction involved. The evidence was found to bear persuasive assurances of trustworthiness overlooked by the trial judge. Here, an evidentiary rule would have permitted introduction of the evidence but the trial judge found the circumstances surrounding the making of the out-of-court statement to be indicative of insincerity. In such a situation, appellant was not denied a fair trial in the sense intended in Chambers v. Mississippi and United States v. Johnson, both supra.
II
The second granted issue in this case is whether appellant was prejudiced by the failure of the military judge to give an instruction on the defense of accident as requested by defense counsel. See paras. 73a, 214, and 216b, Manual, supra. As indicated earlier, appellant was charged with the premeditated murder of his wife by shooting her with a shotgun in the back. Article 118(1). The members of this court-martial found appellant guilty of the un[17]*17premeditated murder of his wife, in violation of Article 118. The military judge had earlier instructed the members that if they did not find that appellant acted with a premeditated design to kill, they could still find appellant guilty of unpremeditated murder if they found appellant acted with an intent to kill or inflict great bodily harm on his wife. Article 118(2). As a starting point, it should be noted that the defense of accident, if found to exist by the members, would have excused appellant from criminal liability on the above charges. See para. 216b, Manual, supra. See also Clark and Marshall, A Treatise on the Law of Crimes § 7.02 (7th ed. 1967); W. Winthrop, Military Law and Precedents § 1044 (2d ed. 1920 Reprint).
The lead question is whether there was evidence presented at this court-martial to which the members might attach credit which would raise the defense of accident. See para. 214, Manual, supra. Even if it is raised only by the testimony of appellant, an instruction on accident would be required. See United States v. Tucker, 17 U.S.C.M.A. 551, 554-55, 38 C.M.R. 349, 352-53 (1968). However, if the defense involves several elements of proof, the record must contain some evidence on each of these elements before the military judge is required to instruct the members on it.
Paragraph 216b, Manual, supra, states:
Excuse: Accident or misadventure. A death, injury, or other event which occurs as the result of an accident or misadventure in doing a lawful act in a lawful manner is excusable.
This Court and others have generally held that this defense involves three elements of proof. First, evidence must be introduced that the accused was engaged in an act not prohibited by law, regulation, or order. See United States v. Perry, 16 U.S.C.M.A. 221, 36 C.M.R. 377 (1966); United States v. Sandoval, 4 U.S.C.M.A. 61, 67, 15 C.M.R. 61, 67 (1954). Second, this lawful act must be shown by some evidence to have been performed in a lawful manner, i.e., with due care and without simple negligence. See United States v. Tucker, supra; United States v. Redding, 14 U.S.C.M.A. 242, 34 C.M.R. 22 (1963). Third, there must be some evidence in the record of trial that this act was done without any unlawful intent. See United States v. Femmer, 14 U.S.C.M.A. 358, 34 C.M.R. 138 (1964).
On appeal before this Court, appellant summarized his testimony at trial as follows:
The appellant testified in his own behalf. He stated that on the night in question his wife went out allegedly to play cards with some friends. Later that evening Staff Sergeant Ferguson also went out for awhile, returning at 2330 hours. Upon finding that his wife had not yet returned, the appellant decided to go out again to “give her a taste of her own medicine ... that she had been leaving me at home by myself.” He returned home at approximately 0135 hours. He was confronted by his wife at that time, she was waiving [sic] a knife around, pushing the appellant, and shouting at him. At one point, the victim reached for the appellant and tore his shirt. He further testified that, at that time, he did not think that his wife was actually going to stab him with the knife, although she appeared to be pretty upset and had had .too much to drink. Some pushing back and forth ensued and the parties fell to the floor. When the appellant arose, he saw blood on the floor and subsequently determined that he had been cut in the back. He decided to go to the hospital; however, before he could depart, his wife came at him with the knife again. At this point, the appellant went to the bedroom and got his shotgun because “... I wasn’t going to let her cut me any more....” While his wife continued to threaten and shout, the appellant pushed her out of the way, went downstairs to the garage where he got some shells, and returned. Upon returning, the appellant noted that his wife was on the telephone. He loaded one round into the shotgun, took the phone away from her, “brushed her” and motioned her to sit down to talk [18]*18about the situation and shutup. Mrs. Ferguson either fell or sat on the floor and began to holler, still possessing the knife. The gun was pointing at Mrs. Ferguson and she immediately grabbed the barrel. The appellant told her if she put the knife down, he would put the gun down. Instead, Mrs. Ferguson began jerking the gun — pulling it back and forth — until the weapon discharged, killing her.
This evidentiary summary, although accurate and accepted by the Government, is not complete. Appellant also answered some questions asked by the military judge on behalf of a court member. Para. 149b (3), Manual, supra. The record reads as follows:
[MJ:] This question is from Appellate Exhibit L, by Lieutenant Elmore. Sergeant Ferguson, you have testified about your handling of the shotgun, I would like to call your attention in particular to the time after you had acquired the shotgun shells in the basement and you were coming up the stairs.
A. Yes, sir.
Q. I believe your testimony is that somewhere on the stairs you placed a round into the chamber of the shotgun, is that correct?
A. Yes, sir.
Q. Did you place the safety on?
A. No, sir.
Q. Why didn’t you?
A. I didn’t check the weapon to see if it was on or—
Q. Do you know whether the safety was on or not?
A. No, sir. I don’t know.
Q. How long have you owned that weapon?
A. About two years. I think about two years.
Q. How many times have you handled the gun in just an estimate?
A. Maybe about ten times.
Q. Did you know where the safety was?
A. Yes, sir.
Q. Did you know how to operate the safety?
A. Yes, sir.
Moreover, earlier in the trial, a firearms expert testified as to his examination of the shotgun involved in the death of Mrs. Ferguson. A portion of his testimony is as follows:
MJ: Is there any objection to his being recognized by the court as an expert witness?
IDC: None whatsoever, Your Honor.
MJ: Very well. The court will recognize Mister Boehm as an expert in the field of firearms and toolmarks.
TC: Thank you. Sir, could you tell us a little bit about what you learned concerning the shotgun?
WIT: Do you want me to go through exactly'what the weapon is?
TC: Please.
WIT: Quite a few of you are already familiar with it. It’s a typical pump 12 gauge shotgun. This is a serial brand Ted Williams. The company that makes it is Winchester. This is a model 200 in the Ted Williams, if it was a Winchester brand as stated on the barrel it would be the 1300 XTR. When I say, pump, as you can see when I do like this (witness pumped the gun), in order to pull down on the forearm, it comes back and we have what we call a breech block here (witness pointed to lower part of gun), which when you bring the weapon back it cocks the weapon and as you go forward it enters a round in the chamber and it’s ready to fire. You have manual safety, which is a crossbar type of safety, a crossbolt if you will, which is here (witness pointed in the area of the stock), the weapon will not fire. Some of you probably already know but down here is a little button that I’m pushing (witness pointed to an area by the trigger). As you see when I push this button it’s releasing that forearm. What this is for is when a shot shell is in the chamber and it is cocked and ready to shoot, it’s not coming open. So, if you want [19]*19to open it at this point you have to press the button to release this and you’re ready to open it back up again.
(Emphasis added.)
Then later he said:
WIT: The gun, if it was ready to shoot now, if I was to click it and it was to fire as you can see it is ready to start open again. It’s very easy, it comes open and it’s ready to chamber another shell. Once the weapon has been fired you don’t need to press the button, it will open up and you can cock it again. Basically, that’s what it amounts to.
TC: As far as chambering a new shell, is that an automatic thing or does that have to be done manually?
A. No, this would be manual and if I may, I do have some inert shot shells with me that I have made — standard shot shells that I have made inert and may I please use those to demonstrate that?
TC: With the court’s permission.
MJ: Yes, you may do that.
WIT: This weapon, as I received it, is the magazine capacity — that is the magazine here (witness pointed to the center of the gun), will hold two in the magazine and one in the chamber. The reason for that is there is a plug in here. You take out the plug and the capacity of the weapon would be five rounds including one in the chamber. The normal loading — I have to make sure I don’t point this at anybody, as you can see I have taken all the powder out of these so that they cannot be fired (witness is referring to the inert shot shells), the normal loading if somebody were to stick one in like so (witness loaded gun with one inert shell), possibly two depending on how many you wanted in it, you press the button and it is now ready to be fired. You put it on safe and you can put in the other shot shells. You now have the magazine fully loaded and the gun is ready to fire. Now, a lot of people when they want to unload it, would do one of these (witness cocked the gun) and of course, another one would go in and you keep doing this through all three. A little bit safer, I just like to reach in and press this little latch (witness pointed to area by stock) and it will allow it to come out. If you wanted to load it singly, I can’t feature anybody wanting to do this, I do it in my tests sometimes depending on the marks I want, but you could through the ejection port here (witness indicated an area on the stock) just place a shot shell in there and it would be ready to go.
Q. Did you examine the weapon for functioning ability?
A. Yes, sir. It is in normal operating condition and the safety is functioning properly. No problem.
Q. Were there any defects in it in any way?
A. No, sir. None that I could find in the tests that I did.
Q. How about the safety, does that work?
A. Yes, sir. It’s working fine. I ran tests if you would like me to explain what the tests were?
Q. Yes.
(Emphasis added.) A government witness also testified that appellant used this shotgun when they went hunting on numerous occasions. Appellant testified that everything that night was happening pretty fast but he did not state or imply that this was the reason that he failed to check or place the safety in operation. He further testified that he purposely loaded the shotgun in his wife’s view to place her in apprehension.
Examination of the evidence of record in this case leads to a single critical question as to appellant’s request for an instruction on the defense of accident: Is there evidence in the record showing that appellant acted with due care in brandishing a loaded shotgun in his wife’s face without checking the safety mechanism or placing it in operation? See United States v. Tucker, supra. This question assumes, for purposes of this discussion, there was evidence in the record that appellant was acting in self-defense [20]*20when he grabbed his shotgun, went downstairs to load it, and returned to confront his wife. See United States v. Perry, supra; United States v. Moore, 15 U.S.C.M.A. 187, 35 C.M.R. 159 (1964); United States v. Smith, 13 U.S.C.M.A. 471, 33 C.M.R. 3 (1963); United States v. Acosta-Vargas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962). It similarly assumes the validity of appellant’s statement that he did not intend to fire the shotgun at his wife at any time.
In addressing this question, it must be noted that appellant, in his testimony at trial, characterized the death of his wife as an accident. Such a categorization is not alone sufficient to raise the defense of accident. See United States v. Redding, supra at 246, 34 C.M.R. at 26. Admittedly, he did not expressly concede that he acted carelessly in failing to set the safety of the shotgun or even check if it was set. Cf. United States v. Redding, supra. Yet, the particulars of his testimony on this question and that of the firearms expert conclusively establish that his omissions were careless, especially when done in the' presence of another. See United States v. Sandoval, supra; see also United States v. Fletcher, 13 C.M.R. 165 (A.B.R.1953). Unlike the situation in United States v. Tucker, supra, one would be hard pressed to find that there was any evidence presented in this case from which a jury could conclude that appellant acted without simple negligence.4
A more important reason exists why appellant was not prejudiced by the failure of the military judge to instruct on the defense of accident as requested by his defense counsel. Article 59(a), UCMJ, 10 U.S.C. § 859(a). It was uncontroverted in the present case that appellant intentionally pointed the loaded shotgun at his wife in order to place her in a state of fear or apprehension. Cf. United States v. Tucker, supra at 554, 38 C.M.R. at 352. The defense argued that appellant was acting in self-defense at that time. See para. 216c, Manual, supra. The Government on the other hand argued that appellant was committing a felonious assault on his wife. See Article 128, UCMJ, 10 U.S.C. § 928. In this situation, appellant was not entitled to an instruction on accident as provided in paragraph 216b, Manual, supra, but rather an instruction on unexpected death resulting from permissible self-defense as provided in paragraph 216c, Manual, supra. See Clark, supra; 40 C.J.S. Homicide § 112c.
Prior to 1969, an instruction of this nature was characterized as an accident instruction, United States v. Perry, supra; a self-defense instruction — United States v. Armistead, 16 U.S.C.M.A. 217, 36 C.M.R. 373 (1966); United States v. Gordon, 14 U.S.C.M.A. 314, 34 C.M.R. 94 (1963) — or an amalgamation of the two, United States v. Weems, 3 U.S.C.M.A. 469, 13 C.M.R. 25 (1953). In 1969, however, the President in paragraph 216c of the Manual characterized this excuse as permissible self-defense with unexpected results. See para. 216c, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised edition). This provision states:
When there is reasonable ground for the apprehension of an injury less than death or grievous bodily harm, the accused is entitled to use such force as he believes necessary to defend against this injury so long as this force is less than that which can reasonably be thought likely to produce grievous bodily harm or death. If, in using this lesser degree of force, an unintentional death results which would not have been reasonably anticipated, this death is excusable. The issue is whether, had the victim not died as a result of the encounter, the accused would be amenable to punishment for assault and battery.
[21]*21(Emphasis added.) See para. 4-10e, AFM 111-2, Court-Martial Instructions Guide (October 15, 1971).
Turning to the record of trial, it is clear that the military judge gave instructions on self-defense in accordance with this provision. More importantly, these instructions were tailored to the evidence in this case in the manner requested by defense counsel.5 Admittedly, the word “accident” was not used by the military judge, but it is difficult to see how the words “unexpected death” could possibly have inured to appellant’s detriment. Cf. United States v. Torres-Diaz, 15 U.S.C.M.A. 472, 35 C.M.R. 444 (1965). In this case, the military judge instructed the members on two theories of self-defense. He instructed on self-defense with deadly force which intentionally results in death and self-defense with less than deadly force which unexpectedly results in death. There was no confusion in these instructions. Cf. United States v. Thomas, 11 M.J. 315 (C.M.A.1981); United States v. Jones, 3 M.J. 279 (C.M.A.1977).
The decision of the United States Air Force Court of Military Review is affirmed.
APPENDIX A
PROPOSED
INSTRUCTION
Now in evaluating whether SSgt Ferguson was performing a lawful act in a lawful manner when, according to his testimony, he obtained and loaded his shotgun in self defense to repel, deter, and discourage Octavia Ferguson by pointing the shotgun at her, you may consider that any person assaulted may stand his ground and resist force with force. He may not use such force as to become an aggressor, but he is not limited to the exercise of precisely identical force or the degree thereof as is asserted against him and he may employ such not inordinate means as he believes on reasonable grounds necessary for protection against the impending harm under the circumstances. A person assaulted has the right to exercise such force as may honestly and reasonably appear to him, under all the circumstances, necessary to protect himself from bodily harm even though he may not actually have been in danger of bodily harm. In addition, one may, without forfeiting his right to defend himself against an attack, seek an interview with another in a peaceable manner, for the purpose of demanding an explaination of offensive words or conduct, and he need not go in a friendly spirit. He may assert self defense as an excuse even though he arms himself before seeking the interview. Also, for the purpose of deterring, frightening, or discouraging an assailant, one may threaten to resort to more force than he is legally entitled to actually use under the circumstances. Further, a person is not required to retreat when he is at a place where he has right to be and the law does not demand detached reflection under pressure of a violent attack or in a fast moving situation, and the accused is not required to pause at his peril to evaluate the degree of his danger or the degree of force required to repel it.
Since there is evidence of accident before the court, the burden is on the prosecution to establish beyond a reasonable doubt that the death of Octavia Ferguson was not the result of accident. Thus, unless you are satisfied beyond a reasonable doubt that the death of Octavia Ferguson was not the result of accident, you must acquit SSgt Ferguson of the offense of premeditated murder and all lesser included offenses.