Opinion of the Court
Ferguson, Judge:
Tried by a general court-martial convened by the Commanding General, 82d Airborne Division, at San Isidro, Dominican Republic, the accused was convicted of unpremeditated murder, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for twenty years, and reduction to the grade of Private (E-l). The convening authority approved the sentence. The board of review reduced the period of confinement involved to fifteen years, but otherwise affirmed. We granted accused’s petition for review on issues dealing with the law officer’s instructions. As the assignment inquiring whether he erred prejudicially in failing to instruct on the lesser included offense of involuntary manslaughter [376]*376serves to dispose of the case, we limit our opinion to that question.
I
Accused was stationed with his unit in the Dominican Republic. On the evening of May 10, 1965, he left his company area without authority and went to a nearby bar. He was accompanied by two other soldiers, Wilson and Derrickson. All were armed with automatic rifles. There had been numerous reports and rumors of rebel activity in the city, directed against American troops. Incidents had in fact occurred.
Accused’s weapon was loaded in the bar, and the testimony indicates he expressed a desire to kill a rebel before the night was over. During the group’s stay in the bar, accused met his ultimate victim, Perez. Wilson developed a headache and Perez offered to lead them to a drug store from which he might obtain some patent remedy for it. Perez led the group to a civilian home a few blocks away, to which a pharmacy was attached. The owner admitted them. Immediately thereafter, accused pointed his weapon at the owner and his son, but soon desisted. At Perez’ request, the owner procured a headache remedy and a glass of water for Wilson. Accused suspiciously caused the owner to drink some of the mixture before permitting Wilson to consume any.
Accused appeared very nervous and expressed the desire to leave, as did Perez. Accused, however, ordered Perez to remain. Wilson led Derrick-son from the pharmacy and returned to get the accused. They became engaged in an argument, culminating in threatening each other with their weapons. Perez again said something about leaving. Accused slapped his face and ordered him to sit down, as he was not to leave with them. Wilson heard noises from another room and grew suspicious. As he entered the other room to investigate, he heard shots. On immediately returning, he saw Perez lying near the door and accused running outside.
The victim died almost at once from a gunshot wound fired from accused’s rifle. Six expended cartridges were found on the scene, and bullet holes were found both near the entrance door and the rear door.
In both his pretrial statement and his trial testimony, accused denied any intent to shoot Perez. He declared it was his understanding the victim was to lead them to a place where women might be obtained. Having heard the rumors and reports of rebel activity and claimed attacks on American soldiers, he was suspicious— doubly so, upon arriving at the house and pharmacy. There, Wilson told him he was only seeking a headache remedy. After it had been obtained, tested, and consumed, accused wished the party to leave and return to their compound. He ordered Perez to remain seated in the pharmacy. When Wilson went to investigate noises in the other room, accused heard other sounds behind the rear door. Feeling his suspicions of an ambush had been confirmed, he opened automatic fire towards the rear door. He heard Perez running toward the entrance and, turning, shot toward that door in an effort to prevent his escape, as:
“. . . He was going toward Der-rickson and I didn’t know whether he had a weapon, if he was trying to get to Derrickson or what. I just went and shot in that area. I wasn’t trying to hit him, sir.”
Moore denied any malice or ill will toward Perez or any motive to shoot him. He stated his only intent was to stop Perez’ departure by shooting in front of him. He wanted to keep him in the room until the group had departed, as he feared Perez and others were members of the rebel forces and intended to launch an attack upon them.
II
As we have heretofore stated, a law officer is required to instruct, sua sponte, on the elements of those lesser offenses included within that charged, when there is presented in the record some evidence which would allow the [377]*377fact finders reasonably to conclude that accused was guilty only in the lesser degree. United States v Moore, 12 USCMA 696, 31 CMR 282; United States v Wilson, 7 USCMA 713, 23 CMR 177; United States v Strong, 1 USCMA 627, 5 CMR 55. The test is evidence, not credibility. United States v Black, 12 USCMA 571, 31 CMR 157. The law officer did instruct on the lesser offense of voluntary manslaughter. In our opinion he should have also instructed on involuntary manslaughter.
In both his pretrial statement and his testimony, the accused denied any intent to shoot or harm Perez. He repeatedly stated his only desire was to force Perez to remain in the room until he and his companions had departed, due to his fears that they were about to be subjected to a rebel assault. True, his statements did not go uncontradicted by the other evidence, and there is a plenitude of proof in the transcript to sustain the verdict of the court-martial. But, as we have noted above, that is not our measuring rod as to whether a lesser included offense has been placed in issue. United States v Moore, supra.
Code, supra, Article 119, 10 USC § 919, provides that one who “unlawfully kills a human being . . . while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 118) [felony murder involving burglary, sodomy, rape, robbery or aggravated arson], directly affecting the person; is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.”
Assuming accused’s fears concerning Perez and any connection he might have with rebel activities were totally unjustified, but that he spoke truthfully in stating he shot only to stop his victim’s escape and not in any manner at him, it would appear the deceased was unlawfully killed during the commission upon him of an assault with a dangerous weapon, without intent to kill or inflict grievous bodily harm, in violation of Code, supra, Article 128, 10 USC § 928. If taken as true, this would support findings of guilty of involuntary manslaughter only, for, at the most, it would indicate an unlawful killing during the commission of an offense directly affecting the person. Code, supra, Article 119.
Thus, the situation presented is not unlike that in United States v Johnson, 3 USCMA 209, 11 CMR 209, where the accused alleged that, while he had taken out his pistol, pointed it at his victim, and pulled the trigger, he did so only to frighten him. Holding this statement sufficient to frame an issue of involuntary manslaughter, we pointed out, at page 214:
“The statement of the accused that he intended only to frighten the victim would, if believed, negate the intent to kill or inflict great bodily harm . . . [necessary for a conviction of murder]. It is, therefore, sufficient to frame up an issue . . .
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Opinion of the Court
Ferguson, Judge:
Tried by a general court-martial convened by the Commanding General, 82d Airborne Division, at San Isidro, Dominican Republic, the accused was convicted of unpremeditated murder, in violation of Uniform Code of Military Justice, Article 118, 10 USC § 918. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for twenty years, and reduction to the grade of Private (E-l). The convening authority approved the sentence. The board of review reduced the period of confinement involved to fifteen years, but otherwise affirmed. We granted accused’s petition for review on issues dealing with the law officer’s instructions. As the assignment inquiring whether he erred prejudicially in failing to instruct on the lesser included offense of involuntary manslaughter [376]*376serves to dispose of the case, we limit our opinion to that question.
I
Accused was stationed with his unit in the Dominican Republic. On the evening of May 10, 1965, he left his company area without authority and went to a nearby bar. He was accompanied by two other soldiers, Wilson and Derrickson. All were armed with automatic rifles. There had been numerous reports and rumors of rebel activity in the city, directed against American troops. Incidents had in fact occurred.
Accused’s weapon was loaded in the bar, and the testimony indicates he expressed a desire to kill a rebel before the night was over. During the group’s stay in the bar, accused met his ultimate victim, Perez. Wilson developed a headache and Perez offered to lead them to a drug store from which he might obtain some patent remedy for it. Perez led the group to a civilian home a few blocks away, to which a pharmacy was attached. The owner admitted them. Immediately thereafter, accused pointed his weapon at the owner and his son, but soon desisted. At Perez’ request, the owner procured a headache remedy and a glass of water for Wilson. Accused suspiciously caused the owner to drink some of the mixture before permitting Wilson to consume any.
Accused appeared very nervous and expressed the desire to leave, as did Perez. Accused, however, ordered Perez to remain. Wilson led Derrick-son from the pharmacy and returned to get the accused. They became engaged in an argument, culminating in threatening each other with their weapons. Perez again said something about leaving. Accused slapped his face and ordered him to sit down, as he was not to leave with them. Wilson heard noises from another room and grew suspicious. As he entered the other room to investigate, he heard shots. On immediately returning, he saw Perez lying near the door and accused running outside.
The victim died almost at once from a gunshot wound fired from accused’s rifle. Six expended cartridges were found on the scene, and bullet holes were found both near the entrance door and the rear door.
In both his pretrial statement and his trial testimony, accused denied any intent to shoot Perez. He declared it was his understanding the victim was to lead them to a place where women might be obtained. Having heard the rumors and reports of rebel activity and claimed attacks on American soldiers, he was suspicious— doubly so, upon arriving at the house and pharmacy. There, Wilson told him he was only seeking a headache remedy. After it had been obtained, tested, and consumed, accused wished the party to leave and return to their compound. He ordered Perez to remain seated in the pharmacy. When Wilson went to investigate noises in the other room, accused heard other sounds behind the rear door. Feeling his suspicions of an ambush had been confirmed, he opened automatic fire towards the rear door. He heard Perez running toward the entrance and, turning, shot toward that door in an effort to prevent his escape, as:
“. . . He was going toward Der-rickson and I didn’t know whether he had a weapon, if he was trying to get to Derrickson or what. I just went and shot in that area. I wasn’t trying to hit him, sir.”
Moore denied any malice or ill will toward Perez or any motive to shoot him. He stated his only intent was to stop Perez’ departure by shooting in front of him. He wanted to keep him in the room until the group had departed, as he feared Perez and others were members of the rebel forces and intended to launch an attack upon them.
II
As we have heretofore stated, a law officer is required to instruct, sua sponte, on the elements of those lesser offenses included within that charged, when there is presented in the record some evidence which would allow the [377]*377fact finders reasonably to conclude that accused was guilty only in the lesser degree. United States v Moore, 12 USCMA 696, 31 CMR 282; United States v Wilson, 7 USCMA 713, 23 CMR 177; United States v Strong, 1 USCMA 627, 5 CMR 55. The test is evidence, not credibility. United States v Black, 12 USCMA 571, 31 CMR 157. The law officer did instruct on the lesser offense of voluntary manslaughter. In our opinion he should have also instructed on involuntary manslaughter.
In both his pretrial statement and his testimony, the accused denied any intent to shoot or harm Perez. He repeatedly stated his only desire was to force Perez to remain in the room until he and his companions had departed, due to his fears that they were about to be subjected to a rebel assault. True, his statements did not go uncontradicted by the other evidence, and there is a plenitude of proof in the transcript to sustain the verdict of the court-martial. But, as we have noted above, that is not our measuring rod as to whether a lesser included offense has been placed in issue. United States v Moore, supra.
Code, supra, Article 119, 10 USC § 919, provides that one who “unlawfully kills a human being . . . while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 118) [felony murder involving burglary, sodomy, rape, robbery or aggravated arson], directly affecting the person; is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.”
Assuming accused’s fears concerning Perez and any connection he might have with rebel activities were totally unjustified, but that he spoke truthfully in stating he shot only to stop his victim’s escape and not in any manner at him, it would appear the deceased was unlawfully killed during the commission upon him of an assault with a dangerous weapon, without intent to kill or inflict grievous bodily harm, in violation of Code, supra, Article 128, 10 USC § 928. If taken as true, this would support findings of guilty of involuntary manslaughter only, for, at the most, it would indicate an unlawful killing during the commission of an offense directly affecting the person. Code, supra, Article 119.
Thus, the situation presented is not unlike that in United States v Johnson, 3 USCMA 209, 11 CMR 209, where the accused alleged that, while he had taken out his pistol, pointed it at his victim, and pulled the trigger, he did so only to frighten him. Holding this statement sufficient to frame an issue of involuntary manslaughter, we pointed out, at page 214:
“The statement of the accused that he intended only to frighten the victim would, if believed, negate the intent to kill or inflict great bodily harm . . . [necessary for a conviction of murder]. It is, therefore, sufficient to frame up an issue . . . [of involuntary manslaughter on the theory] that the killing occurred while the accused was perpetrating an offense directly affecting the person of the victim. . . . Accordingly, an instruction on involuntary manslaughter was demanded. . . .”
Again, in United States v Robertson, 5 USCMA 806, 19 CMR 102, we found involuntary manslaughter to have been in issue and the lack of instructions thereon prejudicially erroneous when the accused admitted striking his victim but denied any intent to kill or inflict grievous bodily harm. See also United States v Moore, supra.
The Government does not dispute the foregoing authorities. Instead, it relies on the time-worn and repudiated doctrine that the lesser crime was not placed in issue, as accused’s denial of any intent to harm or kill Perez, in context of the other evidence, is inherently incredible and unworthy of belief. See United States v Jones, 10 USCMA 122, 27 CMR 196; United States v Snyder, 6 USCMA 692, 21 CMR 14; and United States v Desroe, 6 USCMA 681, 21 CMR 3, But, as we [378]*378have lately remarked, the credibility of the accused’s version of the incident is for the court-martial to determine, after receiving proper instructions. It is not the test for deciding whether lesser included offenses are placed in issue. That matter was settled by our decision in United States v Kuefler, 14 USCMA 136, 33 CMR 348, wherein we declared, at page 139:
“Accused’s story may be implausible; it may have been rejected by the fact finders; and, indeed, it may, in light of the other evidence, smack of an afterthought by which he sought to escape his just deserts. But neither this Court, the board of review, nor the convening authority has the right so to pass upon accused’s credibility as, by giving controlling weight to the evidence countervailing his declarations concerning the state of his own mind, to reject his testimony as incapable of presenting an issue of fact for decision by a nisi prius body. So to act is to make a ‘choice which was exclusively a jury choice.’ Young v United States, 309 F2d 662, 663 (CA DC Cir) (1962).”
See also United States v Callaghan, 14 USCMA 231, 34 CMR 11.
We decline, therefore, the invitation of appellate Government counsel to substitute ourselves for the fact finders below and determine the accused guilty of murder as a matter of law. Cf. United States v Kuefler, supra. Instead, we conclude the evidence placed involuntary manslaughter in issue and required the law officer to submit that degree of homicide to the court-martial. United States v Johnson; United States v Robertson, both supra. His failure to do so was prejudicially erroneous.
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.