Appellant Franklin D. Martin was convicted of first degree battery in violation of Ark. Stat. Ann. § 41-1601 (1 )(c) (Criminal Code 1976), the illegal act being that of shooting a person in the face with a .38 caliber revolver. The sentence imposed was ten years’ imprisonment and a $10,000 fine.
The pertinent statute defines first degree battery as follows:
(1) A person commits battery in the first degree, if:
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life;
On appeal appellant contends that § 41-1601 (l)(c), on its face and as applied to him, is unconstitutionally vague, and also defective because the culpable mental state necessary to warrant a conviction is not set out therein.
Ark. Stat. Ann. § 41-204(2) (Criminal Code 1976) provides in pertinent part:
... if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required, and is established only if a person acts purposely, knowingly, or recklessly.
Ark. Stat. Ann. § 41-203(1) (Criminal Code 1976) defines “purposely” and, in accordance with the provisions of the statute, the court gave the following instruction to which appellant objected:
A person commits Battery in the First Degree if he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. The conduct must be done purposely-
A person acts purposely without respect to his conduct or result thereof, when it is his conscious object to engage in conduct of that nature or to cause such a result.
In the commentary to § 41-1603 (Criminal Code 1976) it is stated:
For the most part, Battery in the first degree comprehends only life-endangering conduct. The severity of punishment authorized is warranted by the conjunction of severe injury and a wanton or purposeful culpable mental state. Each sub-section describes conduct that would produce murder liability if death resulted. * * *
A criminal statute must give fair warning of the proscribed conduct. In United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954), the Court stated:
The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.
In Harmon v. State, 260 Ark. 665, 543 S.W. 2d 43 (1976), this Court applied the standard of specificity as defined in U.S. v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947):
* * * The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.
We find appellant’s objection without merit since Ark. Stat. Ann. § 41-204(2) (Criminal Code 1976) clearly provides a culpable mental state must be proved. The court in its instruction imposed the highest burden upon the State, requiring the State to prove the conduct of appellant was done purposely instead of knowingly or recklessly.
Appellant admits in his brief that the extent of harm to the victim is adequately defined in Ark. Stat. Ann. § 41-115(19) (Criminal Code 1976) as follows:
“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.
Appellant argues that the statutory phrase “under circumstances manifesting extreme indifference to the value of human life” does not provide sufficient notice to the accused or the jury of the acts or conduct prohibited by the statute. We do not agree as we find sufficient notice in the words of the statute to indicate the type of conduct proscribed. In United States v. Harriss, supra, it was stated:
. . . [I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise [cases cited]. And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction ....
In State v. Weston, 255 Ark. 567, 501 S.W. 2d 622 (1973), we pointed out why it is desirable to use general language in defining libel rather than a precise and inflexible definition.
Almost the same argument made by appellant here was made in Harmon v. State, supra. In Harmon appellant argued that the provisions of the statute were patently vague and overbroad and that inadequate guidelines were given to the accused and to the jury. In that case the Court stated:
In our view the terminology of § 41-1602(1) (d) is not vague nor overbroad. The provisions of the statute are of such “common understanding and practice” th'at it cannot be said that an ordinary individual or juror would have to speculate as to its meaning.
In the case at bar the phrase “circumstances manifesting extreme indifference to the value of human life” indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. The language of the Arkansas statute does not require reasonable men to speculate as to its common understanding or application.
In People, by Russel v. District Court for Fourth J.D., Colo., 521 P. 2d 1254 (1974), the court had before it inter alia a first degree murder statute using the words “under circumstances manifesting extreme indifference to the value of human life.” The statute was challenged as being unconstitutional “on the grounds that it was facially void for vagueness ...” and the court applying the test of whether men of common intelligence apprehend the statute’s meaning found the statute valid. We have reached the same conclusion in regard to the Arkansas statute.
Affirmed.
Fogleman, J., concurs. Byrd and Hickman, JJ., dissent.