dissenting.
I respectfully dissent from the majority opinion because I believe the trial court properly instructed on first-degree assault *865and the matter is an appropriate jury question.
The precise issue before this Court involves the correctness of the instruction. At trial, the objection to the instruction was based on the argument that the evidence did not support a reasonable inference that a deadly weapon or dangerous instrument was used in the assault.
KRS 500.080(3) defines “dangerous instrument” and notes that it means any instrument which “under the circumstances in which it is used,” is readily capable of causing death or serious physical injury. It is my opinion that under certain circumstances, a hand or fist or other human extremity may be considered as a dangerous instrument. The circumstances of the particular crime give the jury legitimate latitude to decide the factual situation.
The term “dangerous instrument” does not necessarily include “deadly weapon” and it is the circumstances in which an instrumentality is used which determines its degree of dangerousness. See Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978). Therefore, the circumstances in which the instrumentality is used makes the issue a question of fact for the jury to decide.
I believe the legislative intent is clear. The general assembly had already provided the words “deadly weapon” and added the phrase “dangerous instrument” in order to include other items which under particular circumstances could produce death or physical injury.
The trial court properly instructed the jury because it is a jury question as to whether hands and feet are in certain particular circumstances dangerous instruments. The proof of serious physical injury together with the jury finding that Ro-ney inflicted the injury was more than sufficient to support the jury verdict of conviction.
The legislative intent of the Kentucky General Assembly was to prevent death and injury as a result of the use of dangerous instruments and to punish those who resort to such criminal acts. The legislature intended that the circumstances be considered in giving application to its definition of dangerous instrument.
I would affirm the conviction.
STEPHENS, C.J., joins in this dissent.