dissenting. The majority has overlooked, as it must, the definition of a deadly weapon. In doing so it has concluded that the use of a deadly weapon is not an element of aggravated assault.
Apparently the legislature wanted to penalize more severely a person using a firearm to commit a crime than one who did not use a gun or firearm. This is, of course, a valid subject for legislation. However, the legislature did not stop at defining a deadly weapon as a gun but defined a deadly weapon as literally anything capable of causing serious physical injury. Ark. Stat. Ann. § 41-115(4)(b) (Repl. 1977). Applying this definition of a deadly weapon to criminal acts would mean that a person convicted of killing another person using his hands could be sentenced to an additional fifteen years in the penitentiary for using a deadly weapon. Surely this was not the intent of the legislature.
It becomes a matter of semantics, then, as to whether anything which is capable of causing serious physical injury, is an element of aggravated assault. Certainly there is room for doubt.
The majority, rather than using the normal rules of construction of criminal statutes, has in fact become an advocate of the new criminal code and overlooks any imperfections in the code instead of strictly construing its language. Criminal statutes are strictly construed and any doubts are resolved in favor of the defendant. Rowland v. State, 255 Ark. 215, 499 S.W. 2d 623 (1973).
If this were not the third time that the majority has gone out of its way to liberally interpret the code in questionable situations, I might not strongly object. See Britt v. State, 261 Ark. 488, 549 S.W. 2d 84 (1977); Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977). However, it has become clear to me that the majority has no intentions of objectively interpreting the new criminal code and applying the usual standards of judicial review to criminal statutes.
Therefore, I respectfully dissent from the majority. I would reverse the case and remahdit for trial and sentencing without the application of Ark. Stat. Ann. § 41-1004 (Repl. 1977).
I am authorized to state Justice Byrd joins me in this dissent.