dissenting in part and concurring in part:
I must respectfully dissent from the majority’s holding that the trial court did not err when it instructed the jury “As used in these instructions, the term Great Bodily Harm means, a ‘through and through bullet wound.’ ” Candidly, the majority’s holding is logical and an understandable expansion in light of the holdings in State *309v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996), and State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). However, I cannot help but recall that “[t]he life of the law has not been logic: it has been experience.” Holmes, The Common Law, p. 1 (1881).
Both Valentine and Whitaker concerned issues of law for a judge to decide, not factual issues that would impermissibly invade the province of a jury to decide in a criminal trial. In Valentine, the court considered whether there was substantial competent evidence in the record to support the giving of an instruction for the lesser included offense of a level 7 aggravated battery. In Whitaker, the determination of whether great bodily harm had occurred was within the context of classifying the severity level of a crime under the Kansas Sentencing Guidelines Act.
In United States v. Mentz, 840 F.2d 315, 319 (6th Cir. 1988), the court stated:
“The Sixth Amendment to the Constitution guarantees to a defendant the opportunity for a jury to decide guilt or innocence. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). A necessary corollary is the right to have one’s guilt determined only upon proof beyond the jury’s reasonable doubt of every fact necessary to constitute the crime charged.”
The United States Supreme Court has held that a defendant has a right under the Fifth and Sixth Amendments to the United States Constitution to have a jury determine guilt beyond a reasonable doubt on every element of a charged offense. United States v. Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995).
I would hold Instruction No. 14 violates Brice’s Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution. This instruction effectively relieves the State of its burden of proof and constitutes a mandatory presumption on an essential element of a level 4 aggravated battery. The majority astutely recognizes the weakness of its holding if the element of “great bodily harm” is indeed removed from deliberation by the jury. To avoid such a conclusion, the majority opines: “Logic would tell us [Instruction No. 14] is nothing more than providing an applicable definition for the jury’s usage in considering all of the instructions.” I do not agree.
*310Instruction No. 14 removes from jury consideration whether the State proved great bodily harm beyond a reasonable doubt. That decision was made by the trial court and effectively eliminated the defendant’s right of trial by juiy on that element of the crime.
Finally, I fear the implications of the majority’s holding. Why stop with defining great bodily harm as a through and through bullet wound? In almost every case where there is no substantial competent evidence to support the giving of a lesser offense, under today’s holding, the trial court would appear to be free to craft a definition of great bodily harm that would be fact specific and pass constitutional muster.
In summary, the majority’s holding blurs the line between fact questions for the jury to decide and legal questions for the trial court to decide. This holding nullifies the constitutional requirement that a jury decide whether the State has proven beyond a reasonable doubt each fact necessary to constitute the crime charged.
For the foregoing reasons, I respectfully dissent from the second holding within the syllabus but do concur with the balance of the court’s holdings.