Opinion of the Court
GeoRge W. LatimeR, Judge:
This near tragedy commenced with the accused drinking, alcoholic beverages and ended with his use of one of the glass containers as a shillelagh. For his part in the venture, the accused was charged with assault with a dangerous weapon and being drunk and disorderly in hospital quarters, in contravention of Articles 128 and 134, Uni[158]*158form Code of Military Justice, 10 USC §§ 928 and 934, respectively. He was found guilty as charged and sentenced to a bad-conduct discharge, confinement at hard labor for six months, and reduction to hospital recruit. The convening authority approved the findings and sentence except he reduced the period of confinement to four months and suspended the execution of the bad-conduct discharge with provision for automatic remission. Intervening authorities affirmed and thereafter we granted accused’s petition for review to consider certain issues which will be set forth specifically in the subsequent discussion.
The first asserted error is that the evidence is insufficient as a matter of law to support the findings. We believe a short resumé of the facts will show this assignment is without merit. The locale of the altercation was on the second floor of a Hospital Corps barracks. By the use of lockers and temporary partitions, the building was divided into small compartments or cubicles which were occupied by one or more corpsmen. About one o’clock in the morning, a hospitalman named McGuire, who occupied a cubicle with the victim, was awakened by loud talking from across the corridor. He recognized the voices and heard the accused trying to persuade another hos-pitalman to get up and accompany him to a lower floor to engage in a fight with the servicemen sleeping on that level. The accused met with little success, and he gave vent to his disappointment by calling the other party a coward. As he departed from this room to enter the one in which the victim and McGuire lived, he turned on the light in the compartment he was leaving. He repeated his prior performance in this second compartment by disturbing McGuire, inquiring with regard to his courage and importuning him to go below and engage in a fight with the persons living in that area. When McGuire refused and expressed a desire to go back to sleep, he too was called a coward. The accused thereupon walked out of this cubicle but, as he was leaving, he turned on a drop light. The illumination, together with the loud talking, awakened the victim who called to the accused and told him to turn off the light. The accused replied by notifying the victim to turn it off himself. The victim made several demands with no success, so he arose from his bed and stalked the accused to the entrance of the next cubicle. Two other men were billeted in that compartment, but neither was present. As the victim approached the accused, he noticed the latter was holding a beer bottle, which at first glance appeared to the victim to be in a position for drinking but which was immediately shifted and lifted into a striking position. The victim made a lunge for the weapon and, during the course of the struggle, was hit on the head with sufficient force to shatter the bottle. Seven stitches were required to close the wounds on his head and neck.
Conceding that there is some discrepancy in the testimony of the victim as to whether he was struck as the fight commenced or while struggling on a bed, that is understandable because he was too busily engaged in the fight to observe meticulously each and every detail. However, discrepancies may be resolved by the triers of fact, and here one witness who did not see the start of the fight but was awake and within hearing distance testified he heard the breaking of glass before he heard the scuffling of the combatants. In addition, the two witnesses who entered the compartment and noticed the victim striking the accused stated the victim had been struck before they arrived. From this record the court-martial members could conclude either that the victim was struck prior to or as he was attempting to disarm the accused or later on in the combat. But, more important, all witnesses are in agreement that the victim was not armed, the bottle was broken, the parts were on the bed and floor, the victim was covered with blood, and his scalp and neck were cut. Moreover, when the first nonparticipants reached the cubicle, the victim was bleeding profusely. At this time, the combatants were locked in a struggle on a bed and the accused was on the bottom, ap[159]*159parently not faring too well. The fight was broken up by the first arrivals, and the participants policed themselves. The accused went to bed, and the victim to the hospital. Three witnesses testified the accused was under the influence of liquor.
From the above related facts we conclude that a finding of an assault with a dangerous weapon and being drunk and disorderly in quarters is supportable by the evidence. Accordingly, the assignment based on insufficiency of the evidence is resolved against the accused.
The principal error asserted by appellate defense counsel questions the propriety of the instruction on self-defense given by the president of the court. The instruction is hereinafter quoted in full:
“The court is further advised that the question of self defense has been in issued [sic] by the evidence with respect to the offense. You are advised that a person may lawfully meet force with a like degree of force in protecting himself. However, a person may use force likely to result in grievous bodily harm only when retreat by him is not reasonable [sic] possible or would endanger his own safety, or when he is in his own home or at a place of duty where he is required to remain. Therefore, to avail oneself to use force in defense of himself the person must not have been the aggressor or intentionally provoked the áltercation with the victim; but, if after provoking a fight, the person withdraws in good faith and his adversary follows and renews the fight, he is no longer the aggressor and may avail himself of the right of self defense. The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence beyond a reasonable doubt. Self defense is a complete excuse for assault. Consequently, unless you are satisifed [sic] beyond a reasonable doubt that the accused did not act in self defense, you must find the accused not guilty of the charge. Furthermore, the accused is excused for assaulting in self defense if he believed on reasonable gounds [sic] that the assault was necessary to save his own life, or to prevent great bodily harm to himself. To be excused for such an assault, a person must have believed or [sic] reasonable grounds that the danger of being killed or of receiving great bodily harm was imminent.”
As an abstract matter, even a cursory reading discloses inaccuracies in the charge as given but in the factual background of this altercation the inexact principles are nonprejudicial. In making that assertion we are taking the position that the victim was the aggressor although there is good authority for the proposition that when the accused raised the bottle to a striking position within effective distance of the victim he committed an assault. • As to the necessity for using the bottle as a club, the accused did not testify, and prior to trial he made no disclosure as to his belief that the use of a deadly weapon was necessary to ward off the possibility of being injured seriously.
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Opinion of the Court
GeoRge W. LatimeR, Judge:
This near tragedy commenced with the accused drinking, alcoholic beverages and ended with his use of one of the glass containers as a shillelagh. For his part in the venture, the accused was charged with assault with a dangerous weapon and being drunk and disorderly in hospital quarters, in contravention of Articles 128 and 134, Uni[158]*158form Code of Military Justice, 10 USC §§ 928 and 934, respectively. He was found guilty as charged and sentenced to a bad-conduct discharge, confinement at hard labor for six months, and reduction to hospital recruit. The convening authority approved the findings and sentence except he reduced the period of confinement to four months and suspended the execution of the bad-conduct discharge with provision for automatic remission. Intervening authorities affirmed and thereafter we granted accused’s petition for review to consider certain issues which will be set forth specifically in the subsequent discussion.
The first asserted error is that the evidence is insufficient as a matter of law to support the findings. We believe a short resumé of the facts will show this assignment is without merit. The locale of the altercation was on the second floor of a Hospital Corps barracks. By the use of lockers and temporary partitions, the building was divided into small compartments or cubicles which were occupied by one or more corpsmen. About one o’clock in the morning, a hospitalman named McGuire, who occupied a cubicle with the victim, was awakened by loud talking from across the corridor. He recognized the voices and heard the accused trying to persuade another hos-pitalman to get up and accompany him to a lower floor to engage in a fight with the servicemen sleeping on that level. The accused met with little success, and he gave vent to his disappointment by calling the other party a coward. As he departed from this room to enter the one in which the victim and McGuire lived, he turned on the light in the compartment he was leaving. He repeated his prior performance in this second compartment by disturbing McGuire, inquiring with regard to his courage and importuning him to go below and engage in a fight with the persons living in that area. When McGuire refused and expressed a desire to go back to sleep, he too was called a coward. The accused thereupon walked out of this cubicle but, as he was leaving, he turned on a drop light. The illumination, together with the loud talking, awakened the victim who called to the accused and told him to turn off the light. The accused replied by notifying the victim to turn it off himself. The victim made several demands with no success, so he arose from his bed and stalked the accused to the entrance of the next cubicle. Two other men were billeted in that compartment, but neither was present. As the victim approached the accused, he noticed the latter was holding a beer bottle, which at first glance appeared to the victim to be in a position for drinking but which was immediately shifted and lifted into a striking position. The victim made a lunge for the weapon and, during the course of the struggle, was hit on the head with sufficient force to shatter the bottle. Seven stitches were required to close the wounds on his head and neck.
Conceding that there is some discrepancy in the testimony of the victim as to whether he was struck as the fight commenced or while struggling on a bed, that is understandable because he was too busily engaged in the fight to observe meticulously each and every detail. However, discrepancies may be resolved by the triers of fact, and here one witness who did not see the start of the fight but was awake and within hearing distance testified he heard the breaking of glass before he heard the scuffling of the combatants. In addition, the two witnesses who entered the compartment and noticed the victim striking the accused stated the victim had been struck before they arrived. From this record the court-martial members could conclude either that the victim was struck prior to or as he was attempting to disarm the accused or later on in the combat. But, more important, all witnesses are in agreement that the victim was not armed, the bottle was broken, the parts were on the bed and floor, the victim was covered with blood, and his scalp and neck were cut. Moreover, when the first nonparticipants reached the cubicle, the victim was bleeding profusely. At this time, the combatants were locked in a struggle on a bed and the accused was on the bottom, ap[159]*159parently not faring too well. The fight was broken up by the first arrivals, and the participants policed themselves. The accused went to bed, and the victim to the hospital. Three witnesses testified the accused was under the influence of liquor.
From the above related facts we conclude that a finding of an assault with a dangerous weapon and being drunk and disorderly in quarters is supportable by the evidence. Accordingly, the assignment based on insufficiency of the evidence is resolved against the accused.
The principal error asserted by appellate defense counsel questions the propriety of the instruction on self-defense given by the president of the court. The instruction is hereinafter quoted in full:
“The court is further advised that the question of self defense has been in issued [sic] by the evidence with respect to the offense. You are advised that a person may lawfully meet force with a like degree of force in protecting himself. However, a person may use force likely to result in grievous bodily harm only when retreat by him is not reasonable [sic] possible or would endanger his own safety, or when he is in his own home or at a place of duty where he is required to remain. Therefore, to avail oneself to use force in defense of himself the person must not have been the aggressor or intentionally provoked the áltercation with the victim; but, if after provoking a fight, the person withdraws in good faith and his adversary follows and renews the fight, he is no longer the aggressor and may avail himself of the right of self defense. The burden is on the prosecution to establish the accused’s guilt by legal and competent evidence beyond a reasonable doubt. Self defense is a complete excuse for assault. Consequently, unless you are satisifed [sic] beyond a reasonable doubt that the accused did not act in self defense, you must find the accused not guilty of the charge. Furthermore, the accused is excused for assaulting in self defense if he believed on reasonable gounds [sic] that the assault was necessary to save his own life, or to prevent great bodily harm to himself. To be excused for such an assault, a person must have believed or [sic] reasonable grounds that the danger of being killed or of receiving great bodily harm was imminent.”
As an abstract matter, even a cursory reading discloses inaccuracies in the charge as given but in the factual background of this altercation the inexact principles are nonprejudicial. In making that assertion we are taking the position that the victim was the aggressor although there is good authority for the proposition that when the accused raised the bottle to a striking position within effective distance of the victim he committed an assault. • As to the necessity for using the bottle as a club, the accused did not testify, and prior to trial he made no disclosure as to his belief that the use of a deadly weapon was necessary to ward off the possibility of being injured seriously. Accordingly, any evidence to support that facet of self-defense must be inferred from the evidence presented by the victim as the third parties came on the scene after the blow had been struck. Furthermore, the testimony of all witnesses shows conclusively that the means used by the accused to protect himself were likely to inflict serious bodily harm. Thus, we are not concerned with whether the instruction will stand close scrutiny on homicide or ordinary assault and battery cases, for the charge given in this instance must be measured by the rule applicable in those cases where the defensive force is likely to produce grievous bodily harm.
The appellant complains first about the statement that a person may law-fully meet force with a like degree of force. In United States v Weems, 3 USCMA 469, 13 CMR 25, we found no fault with this language for it is no more than expressing in different [160]*160words the concept that the extent of the force that may lawfully be used in the defense of the person must be governed by the violence and nature of the act of the assailant. Generally speaking, a person is not entitled to use a dangerous weapon in self-defense where the attacking party is unarmed and commits a battery by means of his fist. And if he uses more force in any defense of his person than the law will allow, he becomes the aggressor. The theory of self-defense is protection and not aggression, and to keep the two in rough balance the force to repel should approximate the violence threatened. In the usual case, instructions are given which show that the degree of force permitted to the defender need not be identical with the means employed by the assaulter. That is true here for the president instructed that the accused should be excused if he used only the force which reasonably appeared to him to be necessary to protect himself from impending danger. Of course, no one expects detached reflection under conditions of stress or in fast moving situations, but some degree of equality between the offensive and defensive forces is required by law. That is the principle enunciated in the questioned portion of the instruction and, when considered with the remaining part of the charge, there is no fair risk that the court-martial understood the principle to mean that the defender was limited to absolute identical force threatened by the assaulter.
For the purpose of presenting the next issue we combine the asserted errors that the president prejudiced the accused when he failed to require the court-martial to ascertain whether the accused used excessive force in repelling the assault and made accused’s plea of self-defense contingent on a belief upon reasonable grounds that the force used was necessary to save the accused’s life or to prevent himself from being subjected to great bodily harm. The accused would prevail on those assignments and the errors would be prejudicial if the facts did not show conclusively that the accused used force likely to result in grievous bodily injury. There is no lesser assault offense raised reasonably by the evidence, and so we test the instruction not abstractly but by the facts of this case. Here the accused is guilty of assaulting with a dangerous weapon unless upon reasonable grounds he believed that striking the victim with the bottle was necessary to prevent himself from receiving great bodily harm. Certainly that is the only issue in this case and that finding was permitted by the following portion of the instruction:
“. . . Consequently, unless you are satisifed [sic] beyond a reasonable doubt that the accused did not act in self defense, you must find the accused not guilty of the charge. Furthermore, the accused is excused for assaulting in self defense if he believed on reasonable gounds [sic] that the assault was necessary to save his own life, or to prevent great bodily harm to himself. To be excused for such an assault, a person must have believed or [sic] reasonable grounds that the danger of being killed or of receiving great bodily harm was imminent.”
Obviously if he did not believe reasonably that he had to use the bottle as a weapon to protect himself from serious injury he used excessive force, as a matter of law, in repelling the victim. Accordingly, we are certain that the instructions contained sufficient guideposts to present properly the only defense in issue.
There is no merit to the last contention that the president of the court improperly defined the word drunkenness as it is used in the proscribed offense of being drunk and disorderly in violation of Article 134 of the Uniform Code, supra. He advised the court members that:
“. . . ‘Drunkenness’ means any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental and physical faculties.”
[161]*161This is but a minor variation in the language found in Webster’s New International Dictionary, Second Edition, page 792. As therein defined, a person is drunk who is:
. . under the influence of an intoxicant, esp. an alcoholic liquor, so that the use of the faculties is materially impaired. . . .”
In United States v Bull, 3 USCMA 635, 14 CMR 53, the law officer gave a similar instruction, charging the court that “ ‘any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental and physical faculties is drunkenness. In other words, there must be no . . . deterioration of the accused’s physical ability to act like a normal rational person.’ ” The second sentence of that instruction — not given in the case at bar — was there assailed as incorrect, and we stated:
“. . . With the exception of the questioned sentence, the instruction is in the exact words of the Manual and in effect it declares that a sensible impairment of the faculties is an impairment capable of being perceived by the senses. If the accused’s conduct is not such as to create the impression within the minds of observers that he is unable ‘to act like a normal rational person,’ there can be no sensible impairment of his faculties. If, because of intoxicating liquors, there was a perceptible lessening of accused’s ability to act like a normal rational person, then it may be said that accused’s faculties were sensibly impaired.”
The evidence in support of this specification shows clearly that accused’s condition was such that his intoxication could be perceived readily by other persons and colloquially speaking he was proved to be a drunken barracks nuisance who created a great deal of disorder. We therefore overrule this assignment.
For the foregoing reasons the decision of the board of review is affirmed.
Chief Judge Quinn concurs.