November 24, 1981.
Appeal from the Wayne Circuit Court.
Steven L. Beshear, Atty. Gen., John H. Gray, Asst. Atty. Gen., Frankfort, for movant.
Gordon T. Germain, Bertram, Moore, Hull Germain, Monticello, for respondent.
OPINION OF THE COURT
The respondent, Karen Southwood, was convicted of assault under extreme emotional disturbance and sentenced to two years' imprisonment. KRS 508.040(2)(a). On appeal to the Court of Appeals the judgment was reversed on the single ground that the instruction on her defense of insanity included the statement that the law presumes every man sane until the contrary is shown by the evidence. This court granted review.
In Mason v. Commonwealth, Ky., 565 S.W.2d 140 (1978), we concluded "that in cases hereafter submitted to the jury on the issue of insanity the trial judge shall delete" the foregoing statement from the form of insanity instruction which theretofore had been approved. In so doing, however, we affirmed the judgment against Mason because the statement had been included in the instructions tendered to the trial court by Mason himself. Precisely the same thing happened in this case. It was included in the instruction offered by Southwood. Obviously the same result must follow in this instance as in Mason. It is still the law that an objection must be made in order to preserve an error in the instructions. Wiseman v. Commonwealth, Ky., 587 S.W.2d 235, 238 (1979), is directly in point.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.