dissenting.
From time immemorial it has been the duty of trial courts in criminal prosecutions to instruct on the “whole law of the case.” Of course that duty is conditioned on the principle that the slightest evidence supporting a defense or the commission of a lesser included offense required an instruction on the issue. The trial court refused to instruct on assault in the first degree, a lesser included offense. In my view the majority opinion is wrong. Therefore I dissent.
I deem the rights of Muse to have been impinged upon by the majority’s view. The following demonstrates the fallacy in their line of reasoning: an assault in the first degree is an included offense of the crime of murder.1 When the evidence leaves room for some doubt as to whether the act of the accused was the cause of death, the trial court should instruct on the lesser degree of assault in the first degree.
Dr. Lamar Meigs, a pathologist, performed an autopsy on Saunders subsequent to his death. He testified that the immediate cause of Saunders’ death was a pulmonary embolism which resulted from Saunders’ wounding and the surgery that followed. The positive effect of Meigs’ testimony is weakened by the following questions and answers:
“Q. And some fourteen days later he suffered from this embolism, now how is it you can arrive at the conclusion that this gunshot wound is the initiating event, could it have been something else? A. It could have been, it’s not very likely.”
* * * * * *
“Q. Could there have been some other traumatic event that could have caused the embolism?
A. There could have been but I’m not aware of it.”
If there is any evidence that indicates a doubt, as long as that doubt is reasonable, that Saunders died as a result of a gunshot wound, then an instruction on the lesser included offense should have been submitted to the jury.
The evidence in this case reveals that the first item that supports a doubt is that Saunders died 14 days after he was shot. He was admitted to a hospital and underwent surgery. Although his recovery was incomplete, he was released from the hospital. Another fact that creates doubt is the manner in which Saunders died. His death was the result of a blood clot (embolus) which had formed in his leg, broke loose and coursed through his circulatory system to his lungs. The embolus cut off the blood supply and caused Saunders’ death. Another item that creates doubt is the wavering testimony of the pathologist. His testimony that the event causing the blood clot could have been something other than the gunshot wound, and that it could have been caused by trauma other than that of the wounding and surgery which followed, certainly would leave room for doubt.
The evidence regarding the death of Saunders as a result of a pulmonary embolism creates circumstances sufficient to raise the issue of the cause of death. Was the pulmonary embolism that killed Saunders the result of the gunshot wound and ensuing surgery, or was the embolus the *569result of trauma or another incident not related to the gunshot wound and surgery? I say that these questions, supported by the evidence, create some doubt as to the cause of death.2
The majority’s view does violence to the “whole law of the case” rule. It in effect overrules a number of cases which stand for the principle that where the evidence authorizes it is error on the part of the trial court to fail to instruct on any of the lesser degrees of offense charged in the indictment or in any offense included within that charged. See Harris v. Commonwealth, 218 Ky. 798, 292 S.W. 467 (1927); and other cases cited herein.
It is ironic that the trial court instructed on lesser degrees of homicide and yet failed to instruct on assault in the first degree. I am of the opinion that it was error on the part of the trial court to refuse an instruction on assault in the first degree. I believe that the judgment should be reversed for the reasons set out herein.
For all of the reasons enumerated above, I register this, my dissent.
I am authorized to say that PALMORE, J., joins in this dissent.
. KRS 505.020(2)(d).
. See the commentary discussing KRS 505.-020(2)(d), in which an example of a lesser included offense is set out. Majority Opinion pp. 566-567.