concurring in part, dissenting in part. I agree with the majority that the circuit court should have given a jury instruction under Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940). However, I write to call attention to the effect of continuing to follow Davidson. In Davidson, our court held that the recovery of gambling losses by force precludes a finding of guilt to the crime of robbery. Here, Daniels used a knife to recover $20.00 he claims he lost gambling, resulting in the death of James Williams.
While our country prides itself in functioning under the rule of law, Davidson undercuts that noble purpose of our judicial system. We even have a statute that allows for the peaceful, civil recovery of gambling losses. See Ark. Code Ann. § 16-118-103(a)(1) (Repl. 2006). There is no reason for anyone to resort to an attack like the one in this case when a civil statutory method of recovery exists. Public policy is hardly served under these facts.
While I concur with the result, I would overrule Davidson prospectively.