¶1dissenting.
¶2I disagree with the majority opinion for essentially the same reasons as those in my dissent in Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978).
¶3This case presents a classic illustration of a state of facts justifying a self-defense instruction. It is fundamental that the defendant’s theory of the case be presented to the jury if justified by the facts. Here, self-defense is the defendant’s theory of the case, and the instruction is given. The majority opinion stands for the proposition that the defendant’s theory of the case be given to the jury by an instruction and then adds another dimension by going a step further and requiring the giving of an extreme emotional disturbance instruction. Carl Engler testified that he was “scared,” “afraid he was going to stab me.” This is self-defense language and not extreme emotional disturbance language. Interestingly enough the majority opinion points out that the defendant has the burden of proving extreme emotional disturbance. It is my view that Carl Engler failed completely in meeting this burden, if he ever had any idea of attempting to prove it in the first place.
¶4Accordingly I dissent.
¶5STEPHENS, J., joins in this dissent.