dissenting.
I would reverse the judgment and remand the case for a new trial for two reasons.
First, there was no evidence adduced by the Commonwealth which could fairly be said to support a finding of “serious physical injury” to Mrs. Williams. Fainting, bruises and a small laceration in the posteri- or portion of the vagina simply do not create a substantial risk of death, or cause serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ as required by KRS 500.-080(15). Mrs. Williams completely recovered from these injuries within two to three weeks. These are mere physical injuries as defined by KRS 500.080(13). The instructions given by the-trial judge were prejudi-cially erroneous in that they permitted, over the objection of Cooper, the jury to find that these injuries could raise the conduct in question to the status of a Class A felony. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75, 78-79 (1977).
Second, the evidence taken as a whole is sufficient not only to support a conviction of attempted first-degree rape, but also to justify a reasonable doubt as to whether Cooper is guilty of the higher or lower offense. There was no direct evidence of penetration of the labia by the penis. Because of her fainting spell, Mrs. Williams was unable to testify to penetration. It would have to be inferred by the jury from circumstantial evidence, i. e., primarily, the tear in the vagina and the bruise on the mons pubis, which Mrs. Williams’ attending physician admitted was equivocal to the point that the incident was “an attempted if not successful rape”. Cooper, in his testimony, denied penetration, but admitted touching Mrs. Williams’ vaginal area with his hands which could explain both the bruise and the tear. The trial judge committed prejudicial error when he declined to give a requested instruction on attempted first-degree rape. Isaacs, v. Commonwealth, Ky., 553 S.W.2d 843, 844-845 (1977); Muncie v. Commonwealth, 308 Ky. 155, 213 S.W.2d 1019 (1948).
I am authorized to state that PALMORE, C. J., joins in this dissent and that STEPHENSON, J., joins in part one of this dissent.