Opinion of the Court
Kilday, Judge:
Charged with premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, accused was tried by a general court-martial convened at Fort Bragg, North Carolina. He was convicted of the lesser offense of involuntary manslaughter, a violation of Article 119 of the Code, 10 USC § 919, and the court sen[547]*547tenced him to dishonorable discharge, total forfeitures, confinement at hard labor for three years, and reduction. Thereafter, the convening authority and a board of review in the office of The Judge Advocate General of the Army affirmed. We granted review on the following issue:
Whether the self-defense instructions are correct in regard to “retreat,” and in stating that the force in self-defense “should approximate” that offered, that there should be a “rough balance. . . . some degree of equality” between the two.
Some background concerning this tragedy is appropriate to our inquiry. The accused, who was not yet nineteen years of age at the time of the instant offense, had enlisted in the Army a year and a half earlier. He was five feet, eleven inches tall, and weighed one hundred and sixty-five pounds. Less than six months prior to the date of this killing, accused had borrowed a large sum of money. The total loan, with interest, amounted to some $1,090.00, with which he purchased a used auto, made repairs thereon, and paid for insurance and license fees.
The victim, one Specialist Four Willie Gray, was an older, larger and stronger man — twenty-seven years of age, approximately six feet, four inches in height, and weighing some two hundred and thirty pounds. Despite this difference in age, size, and experience — or perhaps because of it— accused and Gray had been “buddies.” The former let the victim take his newly acquired auto on several occasions.
The evidence indicates Gray abused this privilege, as damage to the auto occurred on certain instances when he borrowed accused’s car. In fact, on the last occasion it became disabled; Gray abandoned it; and it was subsequently stripped by vandals. The cost of necessary repairs apparently made it economically infeasible to fix the auto, and a serious dispute arose between accused and Gray concerning responsibility for the loss. At first, accused claimed, Gray refused to pay anything but, after a good deal of “haggling,” finally agreed to make some compensation and gave accused $5.00 in partial payment;
After payday the next month, accused asked Gray for more money, telling him that, contingent on such further payment, he would sign over the title to the car. Accused testified Gray refused to pay any more money. Rather, he demanded return of his $5.00, which accused averred he tendered to Gray.
Apparently accused was greatly angered. He admitted, and witnesses overhead him call Gray an obscene name. The witnesses claimed Gray told accused “not to say it again,” but accused repeated the obscenity. It is undisputed that Gray thereupon slapped accused. It was a hard blow, but did not knock accused down and he left. It is clear from the record, and accused admits, that he went to the post exchange and purchased a large hunting knife, some ten and one-half inches long. Thus armed, accused returned to the company area. Only ten or fifteen minutes had elapsed. He found Gray in the arms room. There, according to accused, Gray attacked him and, in the course of the ensuing fight, Gray was cut with the knife. Accused ran from the room, dropping the knife as he fled, but was apprehended outside. Gray was hospitalized. His left femoral artery and vein had been severed and, despite emergency treatment and transfusion of some fifty-six units of blood, he died as a result of a stab wound in the groin area.
Having sketched that general backdrop, we turn our attention to the instructions given by the law officer on self-defense. As indicated earlier, appellate defense counsel challenge the advice insofar as it relates to both retreat and quantum of force. As to the latter ' aspect, our recent decisions in United States v Acosta-Vargas, 13 USCMA 388, 32 CMR 388; United States v Smith, 13 USCMA 471, 33 CMR 3; and United States v Hayden, 13 USCMA 497, 33 CMR 29, are controlling. See also United States v Straub, 12 USCMA 156, 30 CMR 156; United States v Black, 12 USCMA 571, 31 CMR 157.
[548]*548The law officer's instructions as to force do indeed contain the words set forth in the granted issue. It is apparent, however, that he extracted the language from this Court’s opinion in Straub, supra, in a commendable effort to avoid any reference to “like degree of force.” Moreover, it is clear from the law officer’s instructions as a whole that he adequately explained the principle to the court-martial members. Thus, he had previously — and quite properly — charged that one was entitled to kill in self-defense if he believed, upon reasonable grounds, such action necessary to protect against the imminent danger of death or grievous bodily harm to himself. He added that self-defense was not available to an aggressor, then continued:
“The court is further advised that in the case of an assault the extent of the force that may lawfully be used in the defense of the person must be governed by the violence and the nature of the act of the alleged assailant. If a person uses more force in the defense of his person than the law allows, he becomes the aggressor. The theory of self defense, gentlemen, is protection and not aggression, and to keep the two in rough balance, the force to repel should approximate the force and the violence threatened. Of course, no one can reasonably expect detached reflection under conditions of stress or in a fast moving situation, but some degree of equality between the offensive and defensive forces is required.”
Further, the law officer advised that, in considering whether accused resorted to excessive force, the court should:
“. . . take into account the evidence that you have heard as to the previous relationship between Gray and Green, the circumstances preceding, leading up to and surrounding the event in question, the relative physical proportions of Gray and Green and you may also take into account the psychiatric testimony that has been received, as well as all the other evidence in the case.”
The instructions in that regard, therefore, are not deficient. United States v Acosta-Vargas, supra.1
The other aspect of the issue before us concerns the law officer’s instruction that:
“. . . No necessity [to act in self-defense] will be considered to exist until the person, if not at his place of abode, which may include a barracks or the place where he sleep [sic] and keeps his possessions, or at a place where he has a duty to remain, has retreated as far as he safely can.”
There can be no question but that the law officer was mistaken insofar as he imposed an absolute requirement of retreat. The opportunity to do so in safety is but one factor to be considered with all others bearing on the issue of self-defense. See United States v Smith, supra; United States v Hayden, supra; and eases therein cited.
We do not find reversible error in the case at bar, however, for examination of the evidence demonstrates accused’s acts were not within the pale of self-defense.
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Opinion of the Court
Kilday, Judge:
Charged with premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, accused was tried by a general court-martial convened at Fort Bragg, North Carolina. He was convicted of the lesser offense of involuntary manslaughter, a violation of Article 119 of the Code, 10 USC § 919, and the court sen[547]*547tenced him to dishonorable discharge, total forfeitures, confinement at hard labor for three years, and reduction. Thereafter, the convening authority and a board of review in the office of The Judge Advocate General of the Army affirmed. We granted review on the following issue:
Whether the self-defense instructions are correct in regard to “retreat,” and in stating that the force in self-defense “should approximate” that offered, that there should be a “rough balance. . . . some degree of equality” between the two.
Some background concerning this tragedy is appropriate to our inquiry. The accused, who was not yet nineteen years of age at the time of the instant offense, had enlisted in the Army a year and a half earlier. He was five feet, eleven inches tall, and weighed one hundred and sixty-five pounds. Less than six months prior to the date of this killing, accused had borrowed a large sum of money. The total loan, with interest, amounted to some $1,090.00, with which he purchased a used auto, made repairs thereon, and paid for insurance and license fees.
The victim, one Specialist Four Willie Gray, was an older, larger and stronger man — twenty-seven years of age, approximately six feet, four inches in height, and weighing some two hundred and thirty pounds. Despite this difference in age, size, and experience — or perhaps because of it— accused and Gray had been “buddies.” The former let the victim take his newly acquired auto on several occasions.
The evidence indicates Gray abused this privilege, as damage to the auto occurred on certain instances when he borrowed accused’s car. In fact, on the last occasion it became disabled; Gray abandoned it; and it was subsequently stripped by vandals. The cost of necessary repairs apparently made it economically infeasible to fix the auto, and a serious dispute arose between accused and Gray concerning responsibility for the loss. At first, accused claimed, Gray refused to pay anything but, after a good deal of “haggling,” finally agreed to make some compensation and gave accused $5.00 in partial payment;
After payday the next month, accused asked Gray for more money, telling him that, contingent on such further payment, he would sign over the title to the car. Accused testified Gray refused to pay any more money. Rather, he demanded return of his $5.00, which accused averred he tendered to Gray.
Apparently accused was greatly angered. He admitted, and witnesses overhead him call Gray an obscene name. The witnesses claimed Gray told accused “not to say it again,” but accused repeated the obscenity. It is undisputed that Gray thereupon slapped accused. It was a hard blow, but did not knock accused down and he left. It is clear from the record, and accused admits, that he went to the post exchange and purchased a large hunting knife, some ten and one-half inches long. Thus armed, accused returned to the company area. Only ten or fifteen minutes had elapsed. He found Gray in the arms room. There, according to accused, Gray attacked him and, in the course of the ensuing fight, Gray was cut with the knife. Accused ran from the room, dropping the knife as he fled, but was apprehended outside. Gray was hospitalized. His left femoral artery and vein had been severed and, despite emergency treatment and transfusion of some fifty-six units of blood, he died as a result of a stab wound in the groin area.
Having sketched that general backdrop, we turn our attention to the instructions given by the law officer on self-defense. As indicated earlier, appellate defense counsel challenge the advice insofar as it relates to both retreat and quantum of force. As to the latter ' aspect, our recent decisions in United States v Acosta-Vargas, 13 USCMA 388, 32 CMR 388; United States v Smith, 13 USCMA 471, 33 CMR 3; and United States v Hayden, 13 USCMA 497, 33 CMR 29, are controlling. See also United States v Straub, 12 USCMA 156, 30 CMR 156; United States v Black, 12 USCMA 571, 31 CMR 157.
[548]*548The law officer's instructions as to force do indeed contain the words set forth in the granted issue. It is apparent, however, that he extracted the language from this Court’s opinion in Straub, supra, in a commendable effort to avoid any reference to “like degree of force.” Moreover, it is clear from the law officer’s instructions as a whole that he adequately explained the principle to the court-martial members. Thus, he had previously — and quite properly — charged that one was entitled to kill in self-defense if he believed, upon reasonable grounds, such action necessary to protect against the imminent danger of death or grievous bodily harm to himself. He added that self-defense was not available to an aggressor, then continued:
“The court is further advised that in the case of an assault the extent of the force that may lawfully be used in the defense of the person must be governed by the violence and the nature of the act of the alleged assailant. If a person uses more force in the defense of his person than the law allows, he becomes the aggressor. The theory of self defense, gentlemen, is protection and not aggression, and to keep the two in rough balance, the force to repel should approximate the force and the violence threatened. Of course, no one can reasonably expect detached reflection under conditions of stress or in a fast moving situation, but some degree of equality between the offensive and defensive forces is required.”
Further, the law officer advised that, in considering whether accused resorted to excessive force, the court should:
“. . . take into account the evidence that you have heard as to the previous relationship between Gray and Green, the circumstances preceding, leading up to and surrounding the event in question, the relative physical proportions of Gray and Green and you may also take into account the psychiatric testimony that has been received, as well as all the other evidence in the case.”
The instructions in that regard, therefore, are not deficient. United States v Acosta-Vargas, supra.1
The other aspect of the issue before us concerns the law officer’s instruction that:
“. . . No necessity [to act in self-defense] will be considered to exist until the person, if not at his place of abode, which may include a barracks or the place where he sleep [sic] and keeps his possessions, or at a place where he has a duty to remain, has retreated as far as he safely can.”
There can be no question but that the law officer was mistaken insofar as he imposed an absolute requirement of retreat. The opportunity to do so in safety is but one factor to be considered with all others bearing on the issue of self-defense. See United States v Smith, supra; United States v Hayden, supra; and eases therein cited.
We do not find reversible error in the case at bar, however, for examination of the evidence demonstrates accused’s acts were not within the pale of self-defense. Thus, the law officer’s instruction thereon was a gratuity, proffered out of an abundance of caution, but not prejudicial to accused’s substantial rights. United States v Regalado, 13 USCMA 480, 33 CMR 12; United States v Brown, 13 USCMA 485, 33 CMR 17; and authorities there collated.
The circumstances of this killing were recounted in general terms at the outset, and elaboration on certain of the facts will suffice to make this point clear. A witness to the stabbing, who was present with Gray in the arms room, testified accused had entered and [549]*549walked up to his victim without a word. When accused was about a foot away he drew back his hand. The witness claimed he saw the knife and cried out a warning to Gray; that the latter was stabbed in the struggle that ensued. Neither the testimony of this witness nor other evidence offered by the Government raises the issue of self-defense.
Accused’s version of the incident differed, but fails to raise that issue to exculpate him. He claimed he was angry about the auto before and, when Gray slapped him, he became more so— as angry, in fact, as he had ever been. He left Gray and ran to the barracks, looking for some sort of weapon- — a stick, broom, or something else “to pick up.” He admitted he came across a close friend to whom he complained of Gray’s actions and who he asked for a knife.2 Meeting with negative results accused proceeded to the post exchange, where he thought he might find a weapon, for he remembered seeing a hunting knife there. He purchased the weapon with which the fatal stab was later inflicted, immediately returned to his unit, and sought out Gray. Accused denied he went to the arms room to kill or hurt Gray. Rather, accused said he merely “wanted to talk to him because I didn’t want him pushing me around.”
According to accused, when he entered the arms room he saw that Gray had a carbine in his hands. “[J]ust as I walked in,” accused continued, the other man present “yelled, ‘Get him, Gray.’ ” Gray had put down the gun and “was making it towards me and I reached for the knife and he hit me. He hit me twice before I even tried to keep him back off of me.”
Significantly, no claim is made Gray made any use whatever of the carbine.3 And, despite Gray’s size and strength, accused admitted under oath that, except for the slap, Gray had never done anything to make him afraid. Nevertheless, accused claimed “protection” was his purpose in arming himself with the hunting knife, “just in case he got after me.” While accused claimed he was not looking for a fight, he needed the knife because he “didn’t have any idea that I could beat the guy, I didn’t want to bother him. I didn’t want to do anything to him. All I wanted to do was get straight on my car.” Accused “didn’t know [whether] he would bother me or not”; he thought Gray wouldn’t “come up on me” against a drawn knife, that “everybody should be afraid of a weapon.”4 The knife was only to frighten Gray, and accused contended the victim was stabbed accidentally in the course of their struggle.
Accused denied any intent to kill or seriously injure Gray, and the court-martial returned findings consistent with this contention. Nonetheless, and accepting accused’s testimony at face value, it is apparent that, after Gray had humiliated and angered him, he deliberately armed himself with a large, wicked hunting knife; then immediately sought out Gray and renewed the encounter. He clearly evinced — both by his actions at the time and his testimony at trial — his insistence on procuring an “equalizer,” then getting some settlement from Gray on his automobile. Moreover, accused’s own evidence demonstrates his awareness that renewing the encounter with Gray might lead to difficulty. Accused did not ifldicate that, upon reasonable grounds, he feared imminent death or serious injury at Gray’s hands and for that reason armed himself. To the contrary, and knowing further confrontation with Gray might spark problems of lesser genre, accused’s whole conduct bespeaks he deliberately procured the knife because of his oft-repeated statement, “I didn’t have any idea that I could beat the guy.”
[550]*550From our recent holdings in United States v Regalado, supra; United States v Brown, supra; United States v Campbell, 13 USCMA 531, 33 CMR 63; and United States v Duckworth, 13 USCMA 515, 33 CMR 47; and authorities upon which we relied in these cases, there can be no question that aggressors, those who engage in mutual combat, or any who thus precipitate an altercation, are not entitled to self-defense. Clearly the accused’s actions in the ease at bar bring him within the sweep of that rule. While we are not unsympathetic to a young man thus put upon — as apparently accused was in this instance — by an older and unscrupulous “friend,” we cannot sanction self-help of the sort here exercised by accused. To do so would make a mockery of Government under law and encourage like tragedies. In light of all the circumstances here involved, and for aught Gray did and however reprehensible his conduct, the law does not permit accused — under the guise of action in self-defense — to arm himself with a dangerous weapon; deliberately seek out his “antagonist” and renew the encounter; and provoke an altercation with the foreseeable consequences that here ensued.
We hold no issue of self-defense was reasonably raised by the evidence. Accordingly, the law officer did not commit prejudicial error. Cf. United States v Weems, 3 USCMA 469, 13 CMR 25; and see United States v Jones, 7 USCMA 623, 23 CMR 87.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.