Opinion of the Court
DARDEN, Judge:
Arraigned and tried by general court-martial at Chu Lai, Republic of Vietnam, accused was found guilty of [135]*135premeditated murder and sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for life, and reduction to the pay grade of E-l. Intermediate appellate authorities affirmed the findings and sentence, but reduced the period of confinement to twenty-five years. This Court granted the accused’s petition for review on two issues. For the reasons stated below, we affirm the decision of the board of review.
On the 27th of August 1966, the appellant volunteered for, and was placed in charge of, a four-man patrol commonly referred to as a hunter-killer team designed to ambush and kill Viet Cong. Specifically included as targets were those seen carrying a weapon at any time, as well as anyone found outside at night. At 3:00 a.m. on the above date, under the cover of darkness, the four men proceeded to a given “grid square” near Hoe Long Village, Khai Dong Hamlet, where they set up an ambush site. At dawn, fearing exposure, they proceeded to a different location. In so doing, Schultz stopped the patrol and entered a Vietnamese house, having said earlier, according to the testimony, that he intended to enter the dwelling and kill a “gook,” or, in the words of a patrol member, “to take this man out of the house and shoot him.”
Thus, the victim was separated from his family and led outside. Ignoring the man’s identification card, the accused shot and killed his captive with a two- or three-round rifle burst in the head. No one had reason to believe the victim was an enemy or that he aided the Viet Cong. To the contrary, his wife and the village chief testified saying the victim was a farmer who had never helped the Viet Cong.
Following these events, the patrol hurriedly departed the area, eventually establishing another ambush site in an abandoned house. Spotted, they moved on to another location, later moving twice again for the same reason. Finally, at 3:30 p.m., they returned to the protection of their own perimeter,
The accused testified that he had set up his first ambush near Hoe Long Village where three trails forked. While looking over the area, he saw a light turned on in one of the homes. As dawn approached, he brooded about the death of two friends and the wounding of another. Looking again at the lighted house, he concluded that it was a signal, that Viet Cong were in the dwelling, and that he had to get inside and kill one. Thus, he went inside the home and pulled the victim outside. Ignoring the latter’s identification card — for many Viet Cong possessed such identification — • accused moved the Vietnamese man sixty meters down the trail, stopping in front of a Buddhist temple where he shot the man with his rifle.
The first granted issue requires us to consider:
“Whether the law officer erred in not tailoring his instructions to the defense theory that the accused believed he was justified in killing the victim on the ground he was a Viet Cong.”
Appellate defense counsel assert that this Court has repeatedly imposed upon the law officer a duty to tailor his instructions and to furnish court members guidance on any defense concept for which there is any basis in evidence. United States v Amie, 7 USCMA 514, 22 CMR 304. Required, therefore, was an instruction covering the defense theory “that the appellant believed that the individual killed was a member of the VC, or that he was in communication with the enemy and was signalling the enemy and attempting to lead the appellant and his patrol into an ambush.” Counsel for the defense also add that Schultz was a Marine who did what he was instructed to do, “and what he felt he had to do to survive.” According to the defense, instructions given by the law officer totally failed to reflect these circumstances.
Appellate Government counsel view the above theory simply as one of confession and avoidance. Having fully confessed in open court, the ac[136]*136cused attempts to “avoid” its consequence by showing either justification or excuse. Cf. Article 118, Uniform Code of Military Justice, 10 USC § 918.
Under the facts of this case, we concur with appellate Government counsel that this argument should be rejected. The testimony of the accused shows his actions to be intentional. Thus removed is the possibility that death of the victim resulted from accident or misadventure. Cf. United States v Redding, 14 USCMA 242, 34 CMR 22. Moreover, self-defense is unavailable for it is a plea of necessity not available, normally speaking, to one who is an aggressor. United States v O’Neal, 16 USCMA 33, 36 CMR 189. Indeed, we are satisfied the accused’s own portrayal of the facts reflects only a premeditated design to kill, in contrast to unpremeditated murder, voluntary or involuntary manslaughter. We conclude, in short, that the killing of Huygen Loi was an act performed without excuse or justification.
There is not an iota of evidentiary support that the victim was a Viet Cong or its sympathizer. Cf. United States v Boberg, 17 USCMA 401, 38 CMR 199. Similarly, there is no factual basis supporting the belief that house lights were used as a means of signalling the enemy. But, even if we were to assume the contrary, accused had taken his victim prisoner. The conduct of the accused toward the prisoner had to be governed by this relationship. Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War (6 UST 3316, 3320, TIAS 3364, August 12, 1949) includes the category of militia or volunteer corps. Article 5, in turn, further provides in part:
“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” [6 UST 3316, 3322, 3324.]
Article 13 specifically proscribes “ ‘Any unlawful act or omission by the Detaining Power causing death . . . of a prisoner.’” (6 UST 3316, 3328).
Similarly, Article 6 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (6 UST 3516, 3520, 3522, TIAS 3365, August 12, 1949), provides, in essence, that such persons under definite suspicion of hostile activities to the security of a Party to the conflict “shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.”
We need not here decide into which of these categories the victim in this case might fall. We do point out that whatever his possible classification, he was entitled to protection against summary execution.
The appellant cannot avail himself of the bare suggestion that he acted under orders. By entering the Vietnamese home, he boldly exceeded his authority. The issuance or execution of an order to kill under the circumstances of this case is unjustifiable under the laws of this nation, the principles of international law, or the laws of land warfare. Such an order would have been beyond the scope of authority for a superior to give and would have been palpably unlawful. See United States v Kinder, 14 CMR 742, and the abundant authority contained in that case.
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Opinion of the Court
DARDEN, Judge:
Arraigned and tried by general court-martial at Chu Lai, Republic of Vietnam, accused was found guilty of [135]*135premeditated murder and sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for life, and reduction to the pay grade of E-l. Intermediate appellate authorities affirmed the findings and sentence, but reduced the period of confinement to twenty-five years. This Court granted the accused’s petition for review on two issues. For the reasons stated below, we affirm the decision of the board of review.
On the 27th of August 1966, the appellant volunteered for, and was placed in charge of, a four-man patrol commonly referred to as a hunter-killer team designed to ambush and kill Viet Cong. Specifically included as targets were those seen carrying a weapon at any time, as well as anyone found outside at night. At 3:00 a.m. on the above date, under the cover of darkness, the four men proceeded to a given “grid square” near Hoe Long Village, Khai Dong Hamlet, where they set up an ambush site. At dawn, fearing exposure, they proceeded to a different location. In so doing, Schultz stopped the patrol and entered a Vietnamese house, having said earlier, according to the testimony, that he intended to enter the dwelling and kill a “gook,” or, in the words of a patrol member, “to take this man out of the house and shoot him.”
Thus, the victim was separated from his family and led outside. Ignoring the man’s identification card, the accused shot and killed his captive with a two- or three-round rifle burst in the head. No one had reason to believe the victim was an enemy or that he aided the Viet Cong. To the contrary, his wife and the village chief testified saying the victim was a farmer who had never helped the Viet Cong.
Following these events, the patrol hurriedly departed the area, eventually establishing another ambush site in an abandoned house. Spotted, they moved on to another location, later moving twice again for the same reason. Finally, at 3:30 p.m., they returned to the protection of their own perimeter,
The accused testified that he had set up his first ambush near Hoe Long Village where three trails forked. While looking over the area, he saw a light turned on in one of the homes. As dawn approached, he brooded about the death of two friends and the wounding of another. Looking again at the lighted house, he concluded that it was a signal, that Viet Cong were in the dwelling, and that he had to get inside and kill one. Thus, he went inside the home and pulled the victim outside. Ignoring the latter’s identification card — for many Viet Cong possessed such identification — • accused moved the Vietnamese man sixty meters down the trail, stopping in front of a Buddhist temple where he shot the man with his rifle.
The first granted issue requires us to consider:
“Whether the law officer erred in not tailoring his instructions to the defense theory that the accused believed he was justified in killing the victim on the ground he was a Viet Cong.”
Appellate defense counsel assert that this Court has repeatedly imposed upon the law officer a duty to tailor his instructions and to furnish court members guidance on any defense concept for which there is any basis in evidence. United States v Amie, 7 USCMA 514, 22 CMR 304. Required, therefore, was an instruction covering the defense theory “that the appellant believed that the individual killed was a member of the VC, or that he was in communication with the enemy and was signalling the enemy and attempting to lead the appellant and his patrol into an ambush.” Counsel for the defense also add that Schultz was a Marine who did what he was instructed to do, “and what he felt he had to do to survive.” According to the defense, instructions given by the law officer totally failed to reflect these circumstances.
Appellate Government counsel view the above theory simply as one of confession and avoidance. Having fully confessed in open court, the ac[136]*136cused attempts to “avoid” its consequence by showing either justification or excuse. Cf. Article 118, Uniform Code of Military Justice, 10 USC § 918.
Under the facts of this case, we concur with appellate Government counsel that this argument should be rejected. The testimony of the accused shows his actions to be intentional. Thus removed is the possibility that death of the victim resulted from accident or misadventure. Cf. United States v Redding, 14 USCMA 242, 34 CMR 22. Moreover, self-defense is unavailable for it is a plea of necessity not available, normally speaking, to one who is an aggressor. United States v O’Neal, 16 USCMA 33, 36 CMR 189. Indeed, we are satisfied the accused’s own portrayal of the facts reflects only a premeditated design to kill, in contrast to unpremeditated murder, voluntary or involuntary manslaughter. We conclude, in short, that the killing of Huygen Loi was an act performed without excuse or justification.
There is not an iota of evidentiary support that the victim was a Viet Cong or its sympathizer. Cf. United States v Boberg, 17 USCMA 401, 38 CMR 199. Similarly, there is no factual basis supporting the belief that house lights were used as a means of signalling the enemy. But, even if we were to assume the contrary, accused had taken his victim prisoner. The conduct of the accused toward the prisoner had to be governed by this relationship. Article 4 of the Geneva Convention Relative to the Treatment of Prisoners of War (6 UST 3316, 3320, TIAS 3364, August 12, 1949) includes the category of militia or volunteer corps. Article 5, in turn, further provides in part:
“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” [6 UST 3316, 3322, 3324.]
Article 13 specifically proscribes “ ‘Any unlawful act or omission by the Detaining Power causing death . . . of a prisoner.’” (6 UST 3316, 3328).
Similarly, Article 6 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (6 UST 3516, 3520, 3522, TIAS 3365, August 12, 1949), provides, in essence, that such persons under definite suspicion of hostile activities to the security of a Party to the conflict “shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.”
We need not here decide into which of these categories the victim in this case might fall. We do point out that whatever his possible classification, he was entitled to protection against summary execution.
The appellant cannot avail himself of the bare suggestion that he acted under orders. By entering the Vietnamese home, he boldly exceeded his authority. The issuance or execution of an order to kill under the circumstances of this case is unjustifiable under the laws of this nation, the principles of international law, or the laws of land warfare. Such an order would have been beyond the scope of authority for a superior to give and would have been palpably unlawful. See United States v Kinder, 14 CMR 742, and the abundant authority contained in that case.
Absent a legally recognizable defense, the law officer was not required to give instructions in this area. Failure to do so was, under the facts of this case, neither erroneous nor prejudicial. United States v Amie, supra; United States v Sitren, 16 USCMA 321, 36 CMR 477; United States v Sheeks, 16 USCMA 430, 37 CMR 50.
The remaining issue is:
“Whether the law officer erred in denying the defense request (R. 97) [137]*137for character instructions and, if error, was it prejudicial.”
In this instance, appellate defense counsel remind us that good character, though not regarded as proof of innocence, may nevertheless have the effect of raising a reasonable doubt as to guilt. United States v Browning, 1 USCMA 599, 5 CMR 27; United States v Johnson, 3 USCMA 709, 14 CMR 127; United States v Pond, 17 USCMA 219, 38 CMR 17. Another contention is that although an act has been conclusively shown to have occurred, a character instruction may, in a proper case, cast doubt upon the degree of an accused’s guilt — if any at all. The omission of such an instruction can, therefore, result in prejudicial error. United States v Mathis, 17 USCMA 205, 38 CMR 3.
In a two-pronged reply, appellate Government counsel initially respond that the law officer properly refused a requested instruction on character because evidence relating to the appellant’s performance of military duties is not considered evidence fitting this category. Should it be so held, appellate Government counsel then suggest that accused’s judicial confession removed the need for an instruction on character, for where the criminal act is conceded, conviction must necessarily follow even if the accused is a paragon of virtue.
The facts in this regard depict the accused as a “good Marine,” one who did “a real good job,” and as an individual who was trusted. He was also known as a good soldier who stood up well in combat. This is character evidence. This Court has said on more than one occasion that good soldierly character may well be stronger than customary evidence of good character. United States v Browning, supra; United States v Barnhill, 13 USCMA 647, 33 CMR 179; United States v Sweeney, 14 USCMA 599, 34 CMR 379. We add, with emphasis, that failure of a law officer to give requested character instructions in a proper case may well result in reversible error.
Drawing a parallel between United States v Mathis, supra, and the case at hand, appellate defense counsel urge the existence of reversible error here. We hold, however, that Mathis is not a controlling precedent here. There, self-defense and insanity were both placed in issue. On this basis the Court stated:
“The error in the law officer’s rationale, clearly revealed by this colloquy, is that not every homicide amounts to a crime and it is only the former which is admitted by the defense. That a crime of any degree was committed is a conclusion they totally reject.” [Emphasis supplied.] [United States v Mathis, supra, at page 208.]
In this case, by comparison, self-defense is not present. The testimony of two psychiatrists — one for the Government, one for the defense-shows accused as having suffered from probable partial mental impairment. As the Court said in United States v Storey, 9 USCMA 162, 167, 25 CMR 424;
“. . . More than partial mental impairment must be shown in order to raise the issue. There must be evidence from which a court-martial can conclude that an accused’s mental condition was of such consequences and degree as to deprive him of the ability to entertain the particular state of mind required for the commission of the offense charged. United States v Kunak, 5 USCMA 346, 17 CMR 346.”
Thus, here, the appellant’s in-court testimony — absent a complete defense —amounted to a judicial confession of murder. The nature of this testimony has its effect on instructional requirements. With evidence in this posture, an instruction on character evidence is not mandatory. In United States v Dodge, 3 USCMA 158, 11 CMR 158, this Court specifically held that once the crime is admitted, character evidence, on the question of innocence or guilt, is of no effect. Cf. United States v McPhail, 10 USCMA 49, 27 CMR 123. Applying the rationale of these cases, we find no prejudicial [138]*138error here resulting from the omission of an instruction on character.
The decision of the board of review is affirmed.
Chief Judge Quinn concurs.