dissenting.
The basic fault with the majority opinion lies in its conclusion that an intentional homicide (one committed with an intent to cause death) can become a wanton or reckless homicide if the act was precipitated by an unreasonable belief in the necessity for self-defense.
There are four degrees of homicide set forth in the Kentucky Statutes. They are murder (K.R.S. 507.020), manslaughter in the first degree (K.R.S. 507.030), manslaughter in the second degree (K.R.S. 507.-040), and reckless homicide (K.R.S. 507.-050). Only two of the classifications of homicide contain the intent to cause death as an element of the crime. They are intentional murder (K.R.S. 507.020(l)(a)), and first-degree manslaughter (K.R.S. 507.-030(l)(b)). Culpability for all other classifications of homicide rests not upon intent to cause death but upon a wanton or reckless mental state even though there was no specific intent to cause death.
A person acts intentionally with respect to a result or the conduct described by a statute defining an offense when his specific objective is to cause that result or to engage in that conduct. K.R.S. 501.020(1).
A person acts wantonly when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. K.R.S. 501.020(3).
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to observe a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that the failure to observe it constitutes such a gross deviation from the standard of care that a reasonable person would observe in the situation. K.R.S. 501.020(4).
All forms of homicide either (1) involve a conscious intent to cause death, or (2) absent such a conscious intent involve such wantonness or recklessness as to be considered culpable. If a homicide is intentional in that death was the conscious objective of the actor, it cannot be a wanton or a reckless homicide, and by the same token, to constitute a wanton or a reckless homicide it must lack the element of specific intent to cause death. It is the intent to cause death rather than the nature of the act or the circumstances surrounding it which distinguishes an intentional homicide from a wanton one.
This element of intent to cause death, or the lack of it, has created serious problems in the statutes enacted by the General Assembly relating to self-defense. K.R.S. 503.050 provides that the use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful force by the other person. The use of deadly force is justifiable only when the defendant believes that such deadly force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled *554by force or threat. This statute creates a purely subjective test. Under previously existing law, a belief in the necessity for self-protection had to be a reasonable belief to constitute a defense. Under this statute, a bonafide belief in the necessity for self-protection, whether reasonable or not, is a complete defense to intentional homicide.
However, unless the belief in the necessity for self-defense is reasonable, the defense of self-protection is not available in offenses for which wantonness or recklessness suffice to establish culpability. K.R.S. 503.120. This simply means that a belief in the necessity of self-protection is not available as a defense for a wanton murder, second-degree manslaughter, or reckless homicide unless it is a reasonable belief.
K.R.S. 503.120 does not provide that one who kills another under a belief that it is necessary to do so to protect himself is guilty of second-degree manslaughter if the belief is unreasonable. It only provides that an unreasonable belief in the necessity to protect oneself is not available as a defense to wanton murder, second-degree manslaughter, or reckless homicide.
The problem is created by the fact that if an intent to cause death is present, the homicide constitutes intentional murder, or first-degree manslaughter, as the case may be. Wantonness or recklessness is not the mental state sufficient to establish culpability for either of those crimes. The defense of self-protection, therefore, has no limitations as to reasonableness in cases of intentional homicide because the requirement of reasonableness applies only in cases where wantonness or recklessness, rather than intent, establishes culpability.
Thus, where death is the intended result, an honest belief in the necessity for self-defense, whether reasonable or not, precludes a conviction for intentional murder and because death was intended, there is no basis for conviction under a wanton or a reckless homicide. The limitation upon the availability of self-defense set forth in K.R.S. 503.120 is simply not available in a case of intentional homicide. The result of this is that if a jury is convinced that a defendant actually believed it was necessary to act as he did to protect himself, even though that belief was unreasonable, he is in a better position if the jury is also convinced that he intended to cause the death of the victim because in that case his subjective belief in the necessity for self-defense is a complete defense regardless of whether the belief was reasonable under the circumstances. But if the homicide is wanton rather than intentional, his subjective belief in the necessity to defend himself is not available as a defense unless the belief is reasonable under the circumstances. This situation is the inevitable result of the action of the General Assembly in providing that a subjective belief in the necessity of self-defense is a complete defense to intentional murder, whether reasonable or not, but is not available as a defense to claims where wantonness or recklessness suffices as the culpable mental state unless the belief is reasonable under the circumstances.
This court, in my opinion, properly construed K.R.S. 503.120 in Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984) and Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985). Those cases involved homicides under a claim of self-defense which were held to be intentional homicides and did not justify an instruction on wanton or reckless homicide. In those cases, the act of shooting was admittedly intentional, and there was no claim that the defendant did not intend to cause death. The opinions, therefore, did not dispose of a case where the act of shooting was intentional but which presented a claim that the defendant did not intend to cause the death of the victim.
Such a case was presented in Commonwealth v. Rose, Ky., 725 S.W.2d 588 (1987), in which we upheld a conviction of wanton homicide (second-degree manslaughter) where the defendant shot her husband under a claim of self-defense (an intentional act) but also claimed that she did not intend to cause his death.
An instruction on wanton homicide in that case was proper because a jury was entitled to believe that she did not intend to kill, and the homicide was therefore not *555intentional, but nevertheless, her actions created a substantial risk of death of which she was aware and consciously disregarded (therefore wanton).
We recognized in Baker and Gray that the drafters of the commentary intended that a person who kills another under an honest, but nevertheless, unreasonable belief in the necessity for self-protection should be acquitted of intentional murder but should be subject to conviction for second-degree manslaughter. We held that the General Assembly simply failed to amend K.R.S. 507.040 to provide that a person is also guilty of second-degree manslaughter when he causes the death of another person by the use of force which he believes is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat, under circumstances which would render such a belief unreasonable.
In Baker, 677 S.W.2d at 879-880 we said:
“There seems to be little doubt that the drafters of the commentary had in mind that a defendant who kills another believing, but without reason to so believe, that his use of force was necessary to protect himself should not be convicted of murder but that he nevertheless should be subject to prosecution for the lesser offenses of manslaughter in the second degree or reckless homicide.
“The general assembly did not provide, however, for the inclusion of an intentional offense within the definition of reckless homicide. We cannot escape the fact that an act claimed to be done in self defense is an intentional act. It is not a ‘reckless’ act as that term is defined by statute.
“To reach the result sought by appellant, we would have to redefine the crime of reckless homicide by adding another section to K.R.S. 507.050 so as to provide that a person is guilty of reckless homicide (1) when, with recklessness he causes the death of another person, or (2) when he causes the death of another person by the use of force which he believes necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat under circumstances which would render such a belief unreasonable.
“The enactment of a statute defining the elements of a crime is a legislative matter, and this court is without authority to add additional substantive provisions to a statute as enacted.
“Statutes which create criminal offenses should do so in express terms and criminal liability should not rest upon implication or inference as to what the General Assembly intended but did not expressly state.”
The citation of the majority to the commentary and to the intention of the drafters of the commentary is correct. It also was recognized by our opinions in Baker and Gray. The difficulty is that the General Assembly did not amend K.R.S. 507.040 to incorporate the intentions set forth in the commentary.
The commentary is not the law of the Commonwealth. It becomes so, however, when this court in the majority opinion states:
“We simply say that the intentional killing precipitated by a wanton or reckless belief in the need to kill is less culpable than murder, and shall be classified for punishment as either Manslaughter II or Reckless Homicide depending on whether the belief was wantonly or recklessly formed.”
The fact that “we” say this when the legislature has not said it simply amounts to an amendment of K.R.S. 507.040 and K.R.S. 507.050 by this court. I cannot condone this type of judicial activism even though it brings about a result which, in my opinion, is better for the Commonwealth than that which results from K.R.S. 507.040 and K.R.S. 507.050 without such a judicial amendment. The mere fact that this court thinks that a statute would be better if it were worded differently does not empower us to rewrite it.
The majority speculates as to the reasons the General Assembly did not spell out in the penal code by additional language the intent expressed in the commentary.
*556Perhaps, it conjectures, the writers of the penal code believed it was adequately explained in the commentary. Indeed, the commentary does state what was intended, but the commentary is not law and does not suffice to amend the statute.
Perhaps, the majority says, it would be cumbersome to add verbiage to the statutes which create each offense. Indeed, it might be, but criminal laws which can deprive a citizen of his liberty should precisely spell out the elements of an offense and not leave him subject to confinement on the basis of what the drafters of the commentary intended, but which the General Assembly never enacted into law.
It is equally likely, I think, that the consequences of the failure to amend the statute to incorporate the intention expressed by the commentary was simply overlooked.
The majority opinion holds that the trial court was correct in holding that self-defense is not available as a defense to wanton murder and was also correct in refusing to qualify the instructions on manslaughter II and reckless homicide with the element of self-protection. It cites K.R.S. 503.120(1) as providing:
“The justification afforded by those sections [self-protection] is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffice to establish culpability.”
This quotation in the majority opinion sets forth only a portion of the statute which reads in full as follows:
“When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.-050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.”
The clear import of the full section is not that self-defense is unavailable in a prosecution for which wantonness or recklessness suffice to establish culpability but that self-defense is not available as a defense in such cases only where the belief in the necessity for self-protection is unreasonable.
The result of the majority holding is that a defendant is never entitled to an instruction on self-protection as a defense to wanton murder, second-degree manslaughter, or reckless homicide. In so holding, the majority overrules previous holdings to the contrary in Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981), and Thompson v. Commonwealth, Ky., 652 S.W.2d 78 (1983).
The facts of the case under consideration demonstrate the fallacy of the majority opinion. The appellant shot and killed the victim who was approaching close to him from the rear with a knife drawn as if to stab him. The victim was intoxicated and had previously threatened the appellant. He said he feared for his life and wanted only to protect himself. The jury was instructed on both intentional murder and wanton murder. It found appellant guilty of wanton murder.
The jury, under these circumstances, could reasonably believe that the appellant did not have an express intent to kill the victim but shot her simply to stop her assault upon him. In that case the appellant should not be, and was not, convicted of intentional murder.
The jury could reasonably believe, and must have so believed, that although there was no intent to kill, the appellant nevertheless acted wantonly in that he was fully aware of and consciously disregarded a substantial risk that death would result from his actions which demonstrated an extreme indifference to the life of the victim. Therefore, a basis for conviction of wanton murder existed if the risk of death was unjustifiable.
A belief in the necessity for self-protection, whether reasonable or not, is justification for intentional murder, but pursuant to K.R.S. 503.120 such a belief is not justifica*557tion for a wanton homicide if it is an unreasonable belief. The General Assembly did not completely exclude self-protection as a defense to wanton crimes, but excluded it as a defense in cases where the belief in the necessity for self-defense is unreasonable.
In the case under consideration, the jury may well have believed that the appellant was justified and reasonable in his belief that the victim was about to stab him and that his life was in imminent danger. Because the wanton murder instruction contained no provision for self-protection, the jury was precluded from considering that defense.
In my view, in homicide cases where the defense of self-protection is asserted, the courts should instruct upon such of the substantive offenses of intentional murder, wanton murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide as is warranted by the evidence. A self-defense instruction should be given which makes it clear that as to the substantive charges which require an intentional mental state, a bonafide belief in the necessity of self-protection is a complete defense pursuant to K.R.S. 503.050 but that as to offenses which are based upon a wanton or reckless mental state, a bonafide belief in the necessity of self-protection is not available as a defense unless it is a reasonable belief. K.R.S. 503.120.
Because the appellant had no opportunity to rely upon a reasonable belief in the necessity to act as he did for his own self-protection as a defense to the charge of wanton murder, I would reverse the conviction.
The decisions in Baker v. Commonwealth, Gray v. Commonwealth, Kohlheim v. Commonwealth, and Thompson v. Commonwealth, supra, are all of recent vintage. I would not so lightly overrule them.
LAMBERT, J., joins in this dissent.