Concurring In Result Only.
I respectfully submit that the majority’s view is one-sided. In its decision today, the majority inexplicably writes out of the statute of limitations for misdemeanors the word “prosecution.” KRS 500.050(2) states
[Ejxcept as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed. (Emphasis added.)
Up until this very hour, Appellee has yet to be prosecuted on a misdemeanor offense. In fact, the prosecution strenuously objected to the giving of the misdemeanor instruction.
We should hold today, as the statute dictates, that when a misdemeanor is born of a felony prosecution and becomes a lesser-included instruction, it does not constitute “prosecution” of the misdemeanor as intended by KRS 500.050(2). It is simply a residue of the felony prosecution. In other words, in the appropriate cases both the Commonwealth and the defendant should be able to request and receive the lesser-included instruction.
My distinguished friends on the Court today turn away from one of the most basic truths of a criminal trial. Jury instructions are totally a judicial function.1 The charge to the jury of the law of the case is not a prosecution responsibility. Nor is it subject to — as the majority allows here — the whims and prerogative of the defense.
This Court agrees with the majority of state courts in holding that an instruction on a time-barred offense is not permitted unless the defendant waives the statute of limitations bar. We should not feel obliged, however, to follow decisions which are inherently unfair, and in some instances carry hideous results.2 We do not have to be like birds on a wire — when one flies they all fly.
One does not need an expansive imagination to discern how this decision will play out. Many, if not most, white collar crimes — especially embezzlement — are *527slow to surface and sometime require extensive, time-consuming investigations. Even though there may clearly be probable cause to indict a defendant for the theft of thousands of dollars, proof at trial may become so complex and intertwined with corporate finance that a jury is unanimous as to guilt, but totally confused on the value. Under this case, if more than a year has passed before prosecution of the felony, the guilty walks.
This very case is a splendid example. Abusing the credit of a child, and using his good name to defraud is a despicable crime. A different prosecutor, after hearing the two co-defendants point the finger at each other, might have wanted the lesser-included misdemeanor to avoid the possibility that both defendants would go free. But wanting it and getting it are not the same. A prosecutor’s request is transformed into a judicial function only when the court adopts the misdemeanor instruction as its own and as representing the total law of the case.
Much attention has been given to the U.S. Supreme Court case of Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). In Spaziano, our nation’s highest court said that a defendant may waive being given the instruction for a lesser-included offense, even though the defendant does not waive his statute of limitations claim. As stated by Justice Blackmun, the issue was “whether the defendant is entitled to the benefit of both the lesser-included offense instruction and an expired period of limitations on those offenses.” Id. at 454, 104 S.Ct. 3154. It is clear to me that Spaziano was written under the assumption that under Florida law the defendant would be free from penalty for the lesser-included offense. We should hold that under Kentucky law he would not.
The waiver requirement present in Spa-ziano should come into play in our trial courts only in pre-trial matters. For instance, reducing felonies to misdemeanors for purposes of plea bargaining is a common practice. This is fully acceptable because implicit in the plea negotiation process is full consent and waiver on behalf of the accused.
In Reed v. Commonwealth, 738 S.W.2d 818 (Ky.1987), a decision relied heavily upon by the Court of Appeals in this case, we reversed the conviction of the defendant because an instruction on the lesser-included misdemeanor was not given, even though the prosecution of the felony had begun more than one year after the crime had been committed. Although the statute of limitations issue of KRS 500.050(2) was not raised, the Court held that the instruction should have been given. 738 S.W.2d at 822-823.
We need to deal with the real world in an even-handed way. A Commonwealth Attorney’s good faith prosecution of a felony can easily weaken in the dynamics of a criminal trial. Witnesses may falter or fail to show; values of stolen property may grow vague; and physical injury may look much less serious at trial than it did at the time of the assault. The defense can introduce strong evidence not previously disclosed to the Commonwealth, resulting in the strong possibility that the jury might opt for a lesser-included misdemeanor offense.
Where is the fairness in allowing a defendant to waive the statute of limitations and receive the benefit of a lesser-included instruction, while denying the Commonwealth the option of an instruction on a misdemeanor? Where is the fairness of invading the province of the trial court’s duty to instruct on all the law, while depriving the jury of a logical and well thought out alternative to the felony? *528Where is the fairness in all of this when considering the defendant has never been prosecuted on the misdemeanor — rather, it simply evolved as an alternative during trial? Where is the fairness in allowing a person guilty of a serious crime — and many misdemeanors are indeed still serious — to walk free because we here on the state’s highest court choose to ignore the plain reading of a statute?
We should leave it to the trial courts to deal with overly zealous prosecutors who may try to bring unwarranted felony prosecutions, which would in and of themselves be time-barred, for the purpose of camouflaging misdemeanors. Such practice is of course condemned, but a vigorous defense bar and vigilant trial judges may amply check this type of prosecutorial abuse. If a directed verdict is entered on behalf of the felony, it would seem to be a solid basis for the trial court to also dismiss the lesser-included offense as time-barred. In any respect, good faith would remain the cornerstone of all criminal prosecutions.
The majority’s rationale provides a one-sided emphasis and allows the defense too much influence over the instructions to be given in a criminal case. Therefore, I respectfully concur in result only.
NOBLE, J., joins.
. The purpose or function of instructions is to inform the jury as to the law of the case applicable to the facts in such a manner that the jury may not be misled[.] 89 C J.S. Trial § 485 (2001).
. One example will suffice. New Jersey has a five-year limitation on the prosecution of manslaughter offenses. That state’s highest court has deemed that a defendant is entitled to an instruction on manslaughter, a lesser-included offense of murder, without telling the jury that he or she will walk free if convicted on the lower crime because it is time-barred. State v. Short, 131 N.J. 47, 618 A.2d 316 (1993).