¶1dissenting.
¶2Respectfully, I dissent. The Majority Opinion sanctions multiple prosecutions for a single offense.
¶3A single act of wanton endangerment may endanger one or many, but it is only one offense. If the resultof the act is death or injury, the act of wanton endangerment merges with the greater offense. The single shot in this case endangered a number of people, including the murder victim. Number of murders is measurable in terms of number of victims because both the act and the result are being sanctioned. However, with wanton endangerment the criminal code intended to sanction the act when no harm resulted, so the number of offenses can multiply only by the number of acts endangering people.
¶4The Penal Code was designed all of one piece. The place occupied in the Code by Wanton Endangerment is as follows:
The Penal Code fleshes out the pattern of assault offenses with a new concept: wanton endangerment. This is designed to provide criminal sanctions when an actor has engaged in wanton conduct but has caused no injury. Brickey, Kentucky Criminal Act, § 9.07 (1974).
The conduct that is punishable under this offense would be sufficient to constitute assault (as that offense is defined in the Penal Code) if a physical injury has resulted from, the conduct. Since the failure of the defendant in fact to cause injury is fortuitous, it is deemed by the Code only to affect the extent of his sanction. Palmore, Kentucky Instructions to Juries, Vol. 1 § 2.21 (1975).
¶5The Commentary to KRS 508.060, Wanton endangerment in the first degree, explains:
*633[Wanton endangerment] can best be described by use of this hypothetical: D, with no intent to kill or injure but with an awareness of the risk involved, shoots a gun into an occupied building, thereby consciously disregarding the risk of death or injury to its occupants. If someone is killed as a consequence of this act, D has committed murder if the triers of fact determine that the circumstances under which he acted manifest extreme indifference to human life (KRS 507.020) or manslaughter in the second degree if the triers find someone is seriously injured as a consequence of this act[.] D has committed assault in the first degree if the circumstances under which he acted manifest an extreme indifference to human life (KRS 508.010) or assault in the second degree if they manifest no such indifference (KRS 508.-020). If D’s act causes neither [none] of these consequences, he has committed the offense of wanton endangerment under KRS 508.060 or 508.070.
¶6The wanton endangerment offense was structured to fill a void in the Penal Code by sanctioning conduct which would otherwise go unpunished, where the actor engaged in wanton misconduct that did not result in injury or death or accompany some other punishable offense such as robbery. When the act of wanton endangerment has such result, it serve no purpose in the structure of the penal structure and simply merges with the greater offense which it caused.
¶7In Marshall v. Commonwealth, Ky., 625 S.W.2d 581 (1982), we recognized and applied this principle. We held a conviction of first degree robbery and first degree wanton endangerment violated the constitutional and statutory prohibitions against double jeopardy. In Marshall, the defendant pointed a pistol at several employees and customers while taking money and narcotics. We stated:
This was all one act or transaction — the perpetration of a robbery. The act of pointing a gun at certain persons prior to the seizure of the loot which gave rise to the wanton endangerment charge was in reality a part of the elements of the robbery act. It was an included offense within the purview of KRS 505.020. The two acts merged, and under the rationale of Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), followed in Whorton v. Commonwealth, Ky., 570 S.W.2d 627 (1978), the first degree wanton endangerment charge must be dismissed. Marshall, supra at 582-83.
¶8The appellants shot a single shotgun blast into the occupied lounge. If no one had been killed or injured, the appellants would have committed one offense of wanton endangerment. Because someone was killed as a consequence of this act, however, the appellants committed the offense of wanton murder.
¶9Merger occurs when the same evidence proves both a lesser included offense and an element of the greater offense. This occurred here and should have prohibited conviction of both offenses. The act of firing the shotgun proving the wanton murder was the same act used to prove wanton endangerment. The conviction for wanton endangerment should be reversed.