OPINION OF THE COURT
Appellate Patrick Howard was tried by a jury, found guilty of the murder of Harold Baker in violation оf KRS 507.020, and sentenced to twenty years in prison. Patrick appeals to this court as a matter of right. We reverse.
On December 2,1979, police found Harold Baker’s bullet-riddled automobile abandoned on a back road in Bell County. The body of Harold Baker was found in the wоods about 75 feet away from the car. The victim had been shot numerous times in the head аnd chest, and had been partially buried under leaves and pine needles.
This court must reverse Patrick’s conviction for murder, however, because the murder instructiоn given to the jury by the trial court, viewed in its entirety, substantially prejudiced Patrick’s right to a fair trial.
Patrick was indicted for (1) murder and (2) being a persistent felony offender. Over Patrick’s objection, the following instructions were given to the jury:
INSTRUCTION NO. A
You will find the defendant guilty under this instruction if, and only if, you believе from the evidence beyond a reasonable doubt all of the following:
(a) That in this cоunty, on or about December 1st or 2nd, 1979, and before the finding of the indictment herein, he voluntarily participated in a robbery of Harold Baker;
(b) That during the course of that robbery, and аs a consequence thereof, Harold Baker was intentionally shot and killed.
[If you find the dеfendant guilty under this instruction, you shall say in your verdict only that you find him guilty, and return the verdict to the Court without dеliberating on the question of fixing the punishment.]
INSTRUCTION NO. B
(a) “Intentionally” — A defendant acts intentionally with respect to another’s death when it is his conscious objective to cause that death.
Instructions must be based upon the evidence and they must properly and intelligibly state the lаw.
Simpson
v.
Commonwealth,
The instruction given in the instant case is very similar to the model instruction found at Sec. 2.04 of 1 Palmore and Lawson, Instructions to Juries in Kentucky. Significant modifiсations of the model instruction were made by adding the word “intentionally” in paragraph (b) and by deleting paragraph (c), which if it had been included would have allowed the jury to find Patriсk guilty of the murder of Baker if the jury had believed that by participating in the robbery Patrick “.. . was wаntonly engaging in conduct which created a grave risk of death to another and that hе thereby caused (Baker’s) death under circumstances manifesting an extreme indifference to human life.” (The addition of the definition of “intentionally” to the instructions given in this case undеr the heading “Instruction No. B ” is not of itself sufficient to indicate to a jury that Patrick’s intentional act is being referred to rather than the intentional act of another participant in the robbery.
Where the jury may find from the evidence presented that a participant in a crimе other than the defendant killed the victim, an instruction such as the one found at 1 Palmore аnd Lawson,
supra,
Sec. 2.04(c) must be included to convict the defendant of murder. If the evidence is consistent with a theory that the defendant intentionally killed the victim, an instruction on intentional murdеr should be given. As written, the instructions given in this case allowed the jury to find Patrick guilty of the murder of Harold Baker so long as the jury believed that Patrick robbed Baker and that during the robbery, and while Patrick was present, a third party intentionally
Because we reverse the conviction for the reasons stated herein, we need not reach Patrick’s other contentions of error.
The judgment is reversed and the cause is remanded to the Bell Circuit Court for further proceedings consistent with this opinion.