
    Gerald W. RUSSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 10, 1986.
    Discretionary Review Denied by Supreme Court Dec. 10, 1986.
    Michael Palermo, Fayette County Legal Aid, Inc., Lexington, for appellant.
    David L. Armstrong, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, for appellee.
    Before DYCHE, HOWARD and WIL-HOIT, JJ.
   DYCHE, Judge.

Gerald Russell shot Darin George twice with a pistol following an altercation between the two; he was convicted of assault, second degree, by a jury in the Fa-yette Circuit Court, and received a five-year prison sentence. He now brings this appeal, making two assignments of error.

He first claims that the trial court committed error by instructing the jury on assault, first degree, since the Commonwealth failed to prove that the victim received serious physical injury. We need not rule on that contention, as Russell was found guilty of second degree assault; conviction of a lesser included offense renders the instruction on the greater offense harmless error. Sweatt v. Commonwealth, Ky.App., 586 S.W.2d 289 (1979), Hensley v. Commonwealth, Ky.App., 474 S.W.2d 888 (1971), Coley v. Commonwealth, Ky.App., 553 S.W.2d 472 (1977), Couch v. Commonwealth, Ky., 479 S.W.2d 636 (1972) and Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973).

Russell next assigns error to the trial court’s instruction concerning the “erroneous belief qualification” to the self-protection instruction. Having decided from the evidence that the defendant was entitled to the KRS 503.050 “self defense” instruction, the trial court further instructed the jury pursuant to KRS 503.120(1), which reads:

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.

This instruction, in effect, allowed the jury to “take back” the self-protection justification if it found that Russell’s belief that he needed to use force to protect himself was “unreasonable.”

It is the duty of the Court to instruct on the whole law of the case. Such instructions must be consistent with the evidence in the case. Grissom v. Commonwealth, Ky., 468 S.W.2d 263 (1971), Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1977), and Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978). There was no evidence in this case that the shooting of Darin George by Gerald Russell was anything but intentional. This being so, the instruction given under KRS 503.120 was improper. As the Supreme Court has said in Baker v. Commonwealth, Ky., 677 S.W.2d 876, 878 (1984):

KRS 503.120 provides that an unreasonable belief that the use of force is necessary for self protection which would establish justification for an intentional act pursuant to KRS 503.050 cannot be used as justification in a prosecution where wantonness or recklessness suffices to establish culpability. The commentary points out that while an unreasonable but actual belief in the necessity to use physical force for self protection will justify an intentional act, it cannot be used to justify a wanton or reckless act.

The 1974 commentary to KRS 503.120 also states in part:

As a consequence of subsection (1) of this section, however, a defense of justification that is based upon an unreasonable belief, as to the need for use of any force or the degree of force used may be limited in application to offenses having “intentional” as the essential element of culpability.

The “unreasonable belief” instruction, as well as the other instructions dealing with wanton, rather than intentional, conduct were objected to by counsel for appellant, and should not have been given. Accordingly, the judgment of the Fayette Circuit Court is reversed and this case is remanded for proceedings consistent with this opinion.

HOWARD, J., concurs.

WILHOIT, J., concurs in result by separate opinion.

WILHOIT, Judge,

concurring in result.

Because of the singular reasoning of the Court in Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984), followed in Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985), I concur in the majority opinion. Although the appellant does not specifically argue on appeal that the instruction on second-degree assault, which instructed on wantonness, should not have been given, at trial he objected “to the instructions dealing with wanton[n]ess or recklessness,” and on appeal he maintains “there was not even a proffer of evidence that wantonness or recklessness was involved.” Contrary to the appellee’s argument, I believe the appellant’s failure now to specifically attack the second-degree assault instruction does not constitute a waiver of his complaint with respect to the self-protection instruction.  