dissenting.
Respectfully, I dissent.
Nothing in the Penal Code provided Hayes with justification to pursue after and shoot at a fleeing person even if a felon. See KRS Ch. 503, General Principles of Justification. Under the Penal Code, the “need” for self-defense need only be subjective. But pursuing (with a gun) and shooting at a fleeing felon does not qualify as perceiving a need to defend oneself. At the point where Hayes pursued he became the aggressor and, even though he claims to have been returning fire at the time of the offense, this claim is no defense to the charge. KRS 503.120(2), recklessness in perceiving the need for self-defense, only applies when a person’s actions qualify as acting in self-defense under circumstances expressed in KRS 503.050 to KRS 503.110, none of which is applicable here.
As stated in the Majority Opinion, the eases upon which Hayes relies in seeking a “multiple aggressors” defense instruction “have not been overruled”; but they are invalidated by the change from the common law, which permitted a private citizen to pursue and subdue a fleeing felon by force, to the Penal Code which does not sanction such conduct. The common law is replaced by the Penal Code where it applies. KRS 500.020. Defenses, like offenses, are statutorily defined, and statutorily limited. The defendant’s “excuse [for] his act” must be conduct of a type the law recognizes as an “excuse.” Even if the victim and the persons in the car were all in on the robbery, “multiple aggressors” as Hayes claims, the Penal Code provides no justification for shooting in the direction of the car.
Hayes testified he ran to look at the car to see if it may have been the robbers; he did not testify his purpose was to check on the license plate. This was simply counsel’s argument pushing the envelope on the facts.
The Commonwealth’s Brief says:
“He [Hayes] told the jury that he ran to his car to retrieve his Desert Shield automatic 44 magnum as the robber ran around the front of the store while exchanging gunfire with Lawrence. Appellant explained during that time a white car ran a nearby stop sign and stopped in front of the store. When he ran to the *790corner, appellant saw the robber trying to get into the car. When noticed, gunfire was exchanged and one of appellant’s bullets resulted in the death of John Payne, a passenger in the car.”
This more accurately summarizes the trial testimony.
Hayes ran after an armed felon who ran to a car to try to escape. Whether his intention was to stop the felon’s escape by force, or only to get the license number of the vehicle, is irrelevant. Whereas before the Penal Code Hayes could pursue and shoot if necessary without becoming the aggressor, and if his shot struck another in the car who was in on the robbery, the shooting was justified because such person qualified as a “multiple aggressor,” this state of the law is now history (for better or worse). The trial court so held, and the Court of Appeals so held. We should feel obliged by the law to do likewise, rather than to distort the Penal Code with our own Old West version of self-defense.
SPAIN, J., joins this dissent.