concurring in part; dissenting in part. I agree that this case should be reversed and remanded based on the erroneous felony-murder charge, but I also believe that the trial court erred in not allowing Craig to put on evidence of self-defense.
I agree with Craig that the trial court erred in refusing to admit testimony concerning McKinnon’s threats to Craig and his family the morning of the beating, which were motivated by McKinnon’s belief that Craig had reported him for “poaching,” and concerning McKinnon’s violent nature, particularly when he was intoxicated as the autopsy report showed him to be. This evidence was clearly relevant to Craig’s self-defense theory. While the majority asserts that Craig initiated the altercation by punching McKin-non in the mouth without provocation, they ignore the undisputed evidence that Craig, while attempting to exit from a dead-end road, encountered McKinnon’s truck blocking the roadway, and that McKinnon got out of his truck and pointed a rifle at Craig’s truck. Further, by this time, McKinnon had picked up a companion, Shane Henry, who was also armed. Because it was McKinnon, not Craig, who was the first to threaten to use deadly physical force, I cannot agree with the majority that Craig failed to provide any evidence showing that McKinnon was the aggressor. At any rate, whether or not Craig was the aggressor was a fact question that belonged to the jury. See Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). Moreover, neither the medical examiner’s testimony, nor that of Shane Henry, contradicts Craig’s claim that McKinnon was alive when he and his companions left. Accordingly, it was a question of fact as to whether the physical force that Craig and his companions employed was necessary to effect their safety.
Finally, on review, the test is not whether Craig would have prevailed with this defense, but rather whether he presented any evidence tending to support its existence. See Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982). Once again, neither the trial court nor this court should have usurped the role of the jury and decided this question, and I would also reverse and remand for a new trial on this point.
Hart, J., joins.