dissenting.
Respectfully, I dissent. Over the defense counsel’s objection, the trial court erred by instructing the jury on wanton murder, and the jury convicted appellant of this offense.
There is an old saying that applies here: “Hard cases make bad law.” This is one of those cases where there was substantial error, but the result seems right and we have written around the error. Unfortunately, as a published opinion, this case make “bad law.”
The uncontradicted evidence in this case was that the appellant intentionally stabbed the victim. The only issue was whether this was done in self-defense. In these circumstances the trial court erred in instructing the jury, over the objection of the appellant’s counsel, that it could find the defendant guilty of either intentional murder or wanton murder. The definitive explanation of the law applicable in these circumstances is in Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1988), which is cited as controlling authority in the Majority Opinion, but its message disregarded. Shannon states:
“There is no place in the structure of the Penal Code for an instruction to find the defendant guilty of wanton murder if the accused acted from an erroneous belief in the need for self-defense. The fact situation calls for an instruction on intentional murder qualified by self-defense. If the belief in the need for self-defense was justified, it is a complete defense. If it is not justified, then the accused can properly be convicted of a lesser included offense, either Manslaughter II or Reckless Homicide, depending on the jury’s conclusion regarding the accused’s state of mind.” Id. at 552.
The fact that the appellant testified that he intended only to “stick” the victim, and not to kill him, does not change the situation one iota.
“Intentionally — A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.” KRS 501.020(1). [Emphasis added.]
When one intentionally stabs another person in the chest with a knife, it is an intentional act and not a wanton act, and whether the assailant realized, appreciated or intended that death would result does not change the nature of the act from intentional to wanton, nor does it justify a conviction for wanton murder.
If the jury believed the appellant did not intend to cause the death of the victim, but only intended serious physical injury, the criminal homicide involved is not wanton murder, but first-degree manslaughter. This much is clearly specified in KRS 507.-030(l)(a). The court instructed, as well it should have, on the lesser included offense of first-degree manslaughter, but the jury never reached a consideration of this issue because of the erroneous instruction on wanton murder.
In Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985), we recognized the principle that where there is no evidence that the accused’s actions are anything but intentional, it is improper to instruct on anything but intentional crimes, and, therefore, an instruction on wanton murder was reversible error. Shannon v. Commonwealth, supra, overruled so much of Gray as failed to recognize the exception to this rule in those situations where the jury finds the defendant honestly believed he needed to act in self-defense, but his belief was wanton or reckless, thus qualifying his criminal act as Manslaughter II or Reckless Homicide. But the Shannon case, as well as the Gray case, embraces the principle that an instruction on both intentional murder and wanton murder in a case where the only explanation offered for striking the blow is self-defense, is error, and, if objected to, is reversible error.
*866The problem here is that the appellant has been erroneously convicted of wanton murder when there is overwhelming evidence that would have justified convicting him of intentional murder. Both crimes carry the same penalty, and it is difficult to afford the appellant relief based on what some may view as a technicality.
But “due process” is the prerogative of the guilty as well as the innocent. The appellant is completely justified in his argument that proper instructions in this case should not have included wanton murder. Instead, the murder instruction should have been limited to intentional murder qualified by self-defense, with the further instruction that should the jury believe the defendant acted in an honest belief in the need for self-defense, but he was wanton in his belief that it was necessary to so act, he should be convicted of wanton manslaughter (Manslaughter II).
It may well be, had the proper instructions been given, appellant would have been convicted of intentional murder. Indeed, if we should reverse and remand, as I believe proper, in my opinion he may still be tried for intentional murder because he was not acquitted of it by the jury’s verdict. The form of verdict utilized by the jury only went so far as to request the jury, if it convicted the defendant under the murder instruction, to specify “under which [alternative] you find the defendant guilty.” Having utilized wanton murder in completing the verdict form, the jury did not specify whether the alternative, intentional murder, was even considered, much less rejected.
The instructions given in this case were contrary to the Penal Code, were contrary to the explanation of Penal Code in Shannon v. Commonwealth, supra, and were prejudicial error.
We should reverse and remand for a new trial.
STEPHENS, C.J., joins.