dissenting.
In Commonwealth v. Rose, Ky., 725 S.W.2d 588 (1987), cert. denied, 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 80 (1987), a prosecution of a battered wife for the murder of her deceased husband, we authorized introduction of evidence regarding the “battered wife syndrome” to explain why a person suffering from that syndrome would perceive that certain conduct was necessary in her self-defense, even though one not suffering from that condition might believe or behave otherwise. In 1992, as part of a package of legislation intended to improve the plight of battered spouses, the General Assembly amended the self-protection statute to authorize the introduction of evidence of prior acts of domestic violence and abuse perpetrated against the defendant by the alleged victim of a homicide or assault. KRS 503.050(3) (1992 Ky. Acts ch. 173 § 2). Thus was the existence of a sordid family secret rescued from the dark ages of criminal jurisprudence. Finally, a battered spouse was entitled to the same presumption of innocence and due process of law afforded to the most hardened of criminals. The majority opinion rendered in this case represents not only an erosion of that progress, but a significant and unconstitutional retreat.
1.
The majority correctly notes that a mistrial can be granted in a criminal prosecution over the defendant’s objection only if there exists a manifest necessity to do so, KRS 505.030(4), United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 166 (1824), Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984), and that one example of “manifest necessity” is when the defendant introduces improper evidence which prejudices the prosecution’s right to a fair trial. Chapman v. Richardson, Ky., 740 S.W.2d 929 (1987); Stacy v. Manis, Ky., 709 S.W.2d 433 (1986). Of course, it is a corollary to this principle that if the evidence was properly admitted, Taylor v. Dawson, 888 F.2d 1124 (6th Cir.1989), cf. Leibson v. Taylor, Ky., 721.S.W.2d 690 (1986), overruled on other grounds, Shaffer v. Morgan, Ky., 815 S.W.2d 402 (1991), or if the evidence did not prejudice the Commonwealth’s case, Lillard v. Commonwealth, Ky., 267 S.W.2d 712 (1954), then the discharge of the jury was without manifest necessity and a retrial is precluded by the constitutional proscription against double jeopardy. It is suggested in Justice Johnstone’s concurring opinion that an erroneous grant of a mistrial ought not preclude a retrial if the error was (as here) the result of an honest mistake. However, there is no “good faith” exception to the constitutional requirement of “manifest necessity.” The two concepts are mutually exclusive. If the trial judge “got it wrong,” double jeopardy applies.
The issue then becomes whether evidence of the deceased’s prior acts of domestic violence and abuse directed against Appellant and her children was rendered inadmissible and prejudicial nunc pro tunc by Appellant’s failure to specifically testify that she killed her husband intentionally in self-protection.
2.
In its ease in chief, the Commonwealth presented evidence to prove the offense of murder, ie., that Appellant intentionally shot and killed her husband. To this end, the Commonwealth introduced the 911 tape in which Appellant first stated, “I just shot my husband.” This was followed by the EMS tape in which Appellant stated that her husband handed her the gun and told her to shoot him, and that, although she did not believe the gun was loaded, she pulled the trigger. A tape recorded statement of Ap*230pellant was introduced in which she stated that she pulled the trigger. Officer James Gray, the first officer on the scene, testified that Appellant told him, “He gave me the gun and told me to shoot him and I did.” Officer Charles Grider testified that Appellant told him that her husband handed her the gun and said if you don’t believe me, just shoot me, and she shot him.
At the conclusion of the Commonwealth’s case, Appellant moved for a directed verdict of acquittal on grounds that the Commonwealth’s evidence was insufficient to prove that her husband’s death was the result of an intentional act. The trial judge correctly ruled that the Commonwealth’s evidence was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the killing was intentional. Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991). The Commonwealth having introduced sufficient evideneé of intent to overcome a directed verdict, it was no longer necessary for anyone, especially Appellant, to introduce additional evidence to prove that she intentionally killed James Grimes.
Appellant began her case with voluminous evidence of the deceased’s prior acts of domestic violence and abuse perpetrated against Appellant and her children. These included separate incidents in which he personally threatened them with a handgun. Dr. Anna Wilson testified as an expert witness that, in her opinion, Appellant was suffering from the “battered spouse syndrome.” The law of Kentucky is clear that if Appellant had at this point chosen not to testify in her own behalf, the evidence introduced by the Commonwealth and Appellant’s other witnesses would have sufficed to entitle her to an instruction on self-protection.
Concerning the question of whether or not the appellant was entitled to an instruction on self-defense, we find that in cases of this character the court is required to give such an instruction where the evidence is wholly circumstantial, there is evidence of a struggle, and the accused fails to testify, or, although he does become a witness, he does not testify as to any facts indicating the manner in which the deceased met death.
Hasty v. Commonwealth, Ky., 272 S.W.2d 325, 326 (1954); see also, Pennington v. Commonwealth, Ky., 344 S.W.2d 407 (1961); Benson v. Commonwealth, 290 Ky. 713, 162 S.W.2d 538 (1942); Rutherford v. Commonwealth, 76 Ky. (13 Bush) 608 (1878). However, Appellant did choose to testify in her own defense.
Appellant also testified to the deceased’s prior acts of domestic violence and abuse. These included a prior incident in which the deceased actually fired his weapon at her five or six times. Appellant then related the incidents leading up to the fatal shooting on July 2, 1992. She testified that her husband stripped her naked and dragged her outside by her hair. She then crawled back into the house to find her husband in the living room. The deceased retrieved his loaded gun from a cabinet and began pointing the gun first at Appellant and then at himself, threatening both of their lives. Appellant testified that she feared for her life and begged her husband to give her the gun. Her description of the fatal event was as follows:
I put my'hand out and I said, “Please let me have the gun, let me have the gun;” and he put the gun in my hand with it turned around [toward him]. And all I did was, I went like that and it went off.
Appellant also introduced photographs of bruises on her body alleged to have been inflicted upon her by the deceased on the night of the fatal incident. At no time during her testimony did Appellant describe the killing as either “accidental” or “intentional,” although she admitted telling her daughter and other witnesses on the day of the incident that the shooting was an accident. Seizing upon this admission and ignoring the fact he had already ruled that the Commonwealth, itself, had introduced sufficient evidence of an intentional killing to avoid a directed verdict of acquittal, the trial judge ruled that Appellant could not claim “accident” and still be entitled to an instruction on self-protection. Having reached that erroneous conclusion, the trial judge found that all of the evidence of prior abuse was irrelevant and that its introduction created a “manifest necessity” for a mistrial.
*2313.
Recognizing that the trial judge’s decision in this case was directly contrary to the holding in Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978), the majority routinely discards that oft-cited and highly respected precedent, see, e.g., 15 A.L.R.4th 983, 1011 (1982), L. West, Kentucky Law Survey (Criminal Law), 74 Ky. L.J. 403, 406, n. 27 (1986), and holds that a defendant (1) cannot claim inconsistent theories, i.e., accident and self-protection, and (2) cannot claim self-protection without specifically admitting that she intentionally killed the deceased. In other words, although the Commonwealth can proceed on alternative theories, e.g., Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993), Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978), the defendant cannot; and although the Commonwealth can prove its case by circumstantial evidence, e.g., Davis v. Commonwealth, Ky., 795 S.W.2d 942 (1990), Nugent v. Commonwealth, Ky., 639 S.W.2d 761 (1982), the defendant cannot prove a defense by circumstantial evidence, but must prove it by her own affirmative testimony. If that is to be the law of this Commonwealth, we have effectively emasculated the presumption of innocence.
4.
In Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 403, 39 L.Ed. 481 (1895), the United States Supreme Court traced the roots of the presumption of innocence from Deuteronomy through Roman law, English common law, and the common law of the United States.
The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
Id., 156 U.S. at 453, 15 S.Ct. at 403.
“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). It has been called the “golden thread” that runs throughout the criminal law, the “cornerstone of Anglo-Saxon justice,” and the “focal point of any concept of due process.” S. Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L.J. 457 (1989). Since the rendition of Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 1933-34, 56 L.Ed.2d 468 (1978), every jury in every criminal case tried in Kentucky is instructed that “[t]he law presumes a defendant to be innocent of a crime [and] ... [y]ou shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that he is guilty.” RCr 9.56(1).
At the heart of the presumption of innocence is the requirement that the state must prove beyond a reasonable doubt every fact necessary to constitute the crime with which a defendant is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,1073, 25 L.Ed.2d 368 (1970). Although a state may determine for itself what are the elements of a criminal offense or of a defense thereto, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), once the state has decided that a fact is so important that it must be proven or presumed, any shifting of the burden of proof to the defendant is a violation of the Due Process Clause. Id., 432 U.S. at 215, 97 S.Ct. at 2329. Our legislature has determined that once evidence is introduced which would justify an instruction on a defense such as self-protection, the Commonwealth has the burden to disprove it beyond a reasonable doubt, and its absence becomes an element of the offense. KRS 500.070(1) and 1974 Commentary thereto; cf. Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977); Cooper, 1 Kentucky Instructions to Juries, § 11.07 (Comment). The burden of proof is assigned by including in the instruction on the charged offense the element “That in so doing, he was not privileged to act in self-protection.” E.g., Cooper, supra, § 3.21.
5.
To justify an instruction on a defense, it is not necessary that the evidence would prove the defense beyond a reasonable doubt, or even by a preponderance of the evidence, but only that which could justify a reasonable *232doubt of the defendant’s guilt. Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed:2d 167 (1982). Pace v. Commonwealth, supra, was not the first case to hold that a defendant is entitled to an instruction on any defense which the evidence tends to establish, whether supported by the defendant’s evidence or that of the Commonwealth. See, e.g., Smith v. Commonwealth, 262 Ky. 6, 89 S.W.2d 3 (1936); Vick v. Commonwealth, 236 Ky. 436, 33 S.W.2d 297 (1930). Nor was it the first case to hold that a defendant may be entitled to an instruction on self-protection, despite his own testimony that the killing was accidental. Gatliff v. Commonwealth, 32 K.L.R. 1063, 107 S.W. 739 (1908). The line of cases cited by the majority in support of the proposition that claims of accident and self-protection are incompatible are easily distinguished. As Chief Justice Palmore pointed out in his concurring opinion in Pace, supra, at 668, the evidence in none of those cases would have justified an instruction on self-protection, none of them overrules Gat-liff, supra, and all of them were decided prior to the adoption of the penal code at a time when the defendant had the burden of proof on the issue of self-protection.
Pace and Gatliff also are in accord with the enlightened majority of jurisdictions which permit a defendant to claim accident and self-protection as alternative theories. E.g., People v. Brooks, 130 Ill.App.3d 747, 86 Ill.Dec. 90, 474 N.E.2d 1287 (1985); State v. Hill, 242 Kan. 68, 744 P.2d 1228 (1987); Commonwealth v. Wilson, 433 Pa.Super. 28, 639 A.2d 1194 (1994); Merritt v. State, 85 Tex.Crim. 565, 213 S.W. 941 (1919). In State v. Eldridge, 554 S.W.2d 422 (Mo.Ct.App. 1977), the defendant was permitted to rely on both theories where the evidence would support either theory and the defendant, as here, did not specifically testify that the killing was accidental. On the issue of the necessity of direct evidence to prove self-protection, the Court held as follows:
In the absence of direct evidence that appellant intentionally shot and killed Davis the State had to rely upon circumstantial evidence of the fact. If the state is entitled to go to the jury on the circumstantial evidence of a voluntary shooting with intent to kill, the appellant is likewise entitled to submit a circumstantial case of voluntary shooting in self-defense. What is sauce for the goose is sauce for the gander.
Id. at 425; compare State v. Hafeli, 715 S.W.2d 524 (Mo.Ct.App.1986), in which the defendant specifically testified that the killing was accidental.
Finally, it has never been the law of this Commonwealth that in order to be entitled to an instruction on self-protection, the defendant must specifically claim to have acted in self-defense. In Alsip v. Commonwealth, Ky., 482 S.W.2d 571 (1972), an instruction on self-protection was held required by other evidence where the defendant did not testify that he acted in self-defense, but claimed he had no recollection of what happened' after he was struck by the victim. And in both Brown v. Commonwealth, 308 Ky. 486, 214 S.W.2d 1018 (1948) and Hamilton v. Commonwealth, 300 Ky. 246, 188 S.W.2d 435 (1945), the defendants were held entitled to instructions on self-protection despite the fact that both denied killing their alleged victims and claimed alibis.
6.
Although precedent can be overruled with four votes and the stroke of a pen, no court has authority to set aside the jurisprudential cornerstones of due process and the presumption of innocence. Despite the fact that our legislature has seen fit to place the burden of proof of self-protection on the Commonwealth, the majority of this Court now holds that a defendant must affirmatively prove that defense by his or her own testimony and cannot rely on circumstantial evidence or even evidence produced by the Commonwealth. In so doing, we have stripped Appellant of the presumption of innocence and thereby denied her the Constitutional right to due process of law. Patterson v. New York, supra.
Appellant was entitled to an instruction on self-protection. Thus, she was entitled to introduce evidence of her husband’s prior *233acts of domestic violence and abuse and there was no manifest necessity to grant a mistrial. Since her retrial is precluded by the Constitutional proscription against double jeopardy, the writ of prohibition should be granted.
STUMBO, J., joins this dissent.