dissenting.

I respectfully dissent.

The district court’s refusal to give instructions covering the factual defense presented to the jury compels reversal.

A clear understanding of the conflicting versions of the facts presented by the government and the defense is essential to assess the prejudicial impact of the district court’s erroneous ruling.

I.

A. Summary of the Government’s Evidence

On August 13, 1981, at 10:30 a.m., Yvonne Descheenie was standing in the outhouse near her mother’s home when she saw Johnnie Lee Bowman, Jr. approaching the door. She remained inside because she was afraid of Bowman. Bowman asked her to open the door. Ms. Descheenie did nothing and remained silent. Bowman grabbed the door and forced it open by breaking the latch. Bowman told her he was going to take her hostage and that she had gotten him into a lot of trouble. Ms. Descheenie refused to go with him. Bowman then grabbed her and tried to push her outside.

Ms. Descheenie held onto a board next to the door. Bowman then removed a knife from his pocket and held it first in his left hand and then in his right hand. He placed the knife blade to Ms. Descheenie’s throat. She struggled and began to scream. Bowman rubbed the knife across her throat.

Aroused by Ms. Descheenie’s screams, her mother, sister, and grandmother came to her rescue. As they approached, Bowman told Ms. Descheenie’s mother that he was going to kill her daughter. At this time Ms. Descheenie pushed the knife away from her throat, cutting her finger in the process. She fell to the ground. Ms. Descheenie’s mother hit Bowman with a board. Mary Jane Descheenie hit Bowman with a ham *1106 mer above his ear with such force that she heard his bones crack. Bowman fell to the ground. He appeared to be unconscious for a time. Mary Jane Descheenie saw a knife in each of Bowman’s hands during the affray.

Yvonne Descheenie received a superficial laceration on her neck which was eight (8) centimeters long. She also had a laceration on her index finger.

B. Summary of the Defense Testimony

Johnnie Lee Bowman, Jr. testified that on August 13, 1981, he walked from his cousin’s home to the Descheenie resident to see his son and Yvonne Descheenie, his common-law wife. When he arrived he saw his wife walking towards the outhouse. He approached her when she was “between a fourth to a half way there.” She began yelling “Mom”. Bowman placed his arms around her to calm her. He then saw Yvonne Descheenie’s mother approach with a board in her hands. She struck her daughter and then hit Bowman. Bowman has no memory of anything that occurred thereafter until he regained consciousness in the hospital. Bowman received a skull fracture and is now deaf in his right ear as the result of the blows he received. He did not have a knife at any time that he was at the Descheenie premises.

II.

A. Refusal to Instruct on a Defense Theory

The district court refused to give instructions on the defense theories of unconsciousness and self-defense. In refusing these instructions the district court stated:

RT: Vol. II. pp. 148-149 (emphasis added).

III.

A. Analysis

The evidence presented at trial was in conflict on several critical points. The government’s witnesses testified that an assault with a deadly weapon began in the outhouse when Bowman placed a knife against the victim’s throat. Later, Bowman moved the knife across her throat and told her mother he was going to kill Yvonne Descheenie.

Bowman testified his wife was somewhere between the residence and the outhouse when he placed his arms around her to calm her. He did not have a knife in his . possession and did not assault anyone prior to being pounded into unconsciousness.

Thus, the theory of the defense is quite clear. No assault with a knife took place during the time Bowman was conscious. If Bowman assaulted anyone, it occurred after he was rendered unconscious and as a reflexive action to protect himself from attack from the Descheenie family. This defense theory was supported by Bowman’s testimony and the inferences which the jury might draw from the testimony presented by both sides. The evidence is uneontra-dicted that Bowman was beaten into unconsciousness and suffers from amnesia as to any events which followed the blows he received to his head.

A defendant in a criminal case is entitled to have the jury consider any thing of defense which is supported by the law, and which has some foundation in the evidence, however, weak in the eyes of the district court. United States v. Bessesen, 445 F.2d 463, 467 (7th Cir.1971).

The majority relies on United States v. Collom, 614 F.2d 624 (9th Cir.1979) in support of its conclusion that the district court correctly rejected Bowman’s instructions on *1107 unconsciousness and self-defense. A careful reading of the issue before this court in Collom discloses that that decision is factually distinguishable. In Collom , the district court read an instruction to the jury submitted by the defendant. In this instruction the jury was told that the jury could consider the sanity of the actual perpetrator of the crime in determining whether a person accused of aiding and abetting the principal is guilty of a crime. After partial deliberations the jury advised the court that it was confused by the instruction. The district court, over objection, told the jury to disregard the instruction. We held that the district court did not commit error in withdrawing the instruction because “Stephen’s novel theory about the effect of his brother’s sanity on his own criminal intent was adequately covered by other instructions.” 614 F.2d at 632 . In the matter before us the district court simply did not instruct on unconsciousness and self-defense.

The well-settled principle that it is prejudicial error to refuse to instruct on the theory of defense was stated eloquently in Tatum v. United States, 190 F.2d 612 (D.C. Cir.1951) in the following words:

Id. at 617 (emphasis added).

In rejecting Bowman’s instructions on unconsciousness and self-defense, the district court committed two fatal errors.

First. The district court weighed the evidence, and determined that the government’s witnesses told the truth concerning the use of a knife and that an assault occurred prior to the time the family assaulted Bowman. In stating that the assault was complete prior to the victim’s rescue, “under the evidence as the court views it,” the district court improperly denied to the defendant the right to have the jury decide who spoke the truth as to when or if any assault occurred, whether the defendant was armed with a knife, and if the law would excuse his conduct if the jury believed his testimony,

The importance of instructing a jury on the law applicable to the defense presented by an accused was well stated long ago in Williams v. United States, 131 F.2d 21 (D.C. Cir.1942).

Id. at 23 .

Second. In deciding whether an instruction embodying the defense’s factual theory must be given to the jury, the district court js required to look at the evidence presented by the defendant. Here, the district court denied these essential instructions because “the government’s case indicates” the assault was completed prior to the time the family arrived. The district court thus ignored its duty to consider the evidence presented by Bowman that no assault occurred prior to the time the family came to Ms. Descheenie's aid.

jy

Conclusion

The district court, in violation of Bowman’s right to a jury trial, resolved conflicts *1108 in the evidence against the defendant as to whether he committed an assault with a knife, and, if he acted unconsciously or in self-defense.

The defendant was entitled to an acquittal if he was able to raise a reasonable doubt that he was unconscious when an assault was committed or that he acted in self-defense.

The failure to instruct the jury on the only factual and legal defense presented to the government’s case denied Bowman a fair trial.

I would reverse and remand for a new trial free of these fatal constitutional infirmities.