dissenting.
What the majority does not explain is what is meant by “culpable mental state.” The Criminal Code provides the answer in § 41-203 (1976) as follows:
“For the purposes of this Code there are four kinds of culpable mental states, which are defined as follows:
(1) ‘Purposely.’ A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.”
When the foregoing definition of a culpable mental state is added to Ark. Stat. Ann. § 41-1601 (1)(c) (Criminal Code 1976) the statute then reads 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;”
[and it is his conscious object to cause such a result.]
That the foregoing does not give the citizenry of this state fair notice of the type of conduct forbidden can be demonstrated by a prisoner who steals an automobile to effectuate his escape. Suppose that the prisoner after stealing the automobile runs over the gate guard and that the prisoner is then shot by the tower guard who is manning a .30 caliber machine gun. The term “serious physical injury” is defined by the New Criminal Code as a “physical injury that creates a substantial risk of death,” Ark. Stat. Ann. § 41-115(19). As far as the substantial risk of death is concerned, the conduct and conscious object of both the escaping prisoner and the machine gunning guard would create “a serious physical injury.” The only other phrase left is “under circumstances manifesting extreme indifference to the value of human life.” I submit that the majority opinion does not give an explanation of why the conduct of both the escaping prisoner and the machine gunning guard would not fall within the category of “manifesting extreme indifference to the value of human life.”
Obviously, I have used an extreme example to demonstrate how vague and indefinite the phrase “under circumstances manifesting extreme indifference to the value of human life” is when applied to law enforcement officers. However, since the foregoing statute is broad enough and vague enough to send to prison any law enforcement officer, jailer or guard who uses a gun in the discharge of his duties, I cannot believe that the legislature intended to create such a monster. Therefore, since the statute creates an overly broad definition which fails to give a person of ordinary intelligence fair notice of what conduct is forbidden, it looks to me that the statute should be declared unconstitutional, United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954).
Those who refer to my position as “fallacy” “hypothetical bugbear” and as being “shaft vision” do a better job than I of showing that the statute under consideration was intended to be as broad as “Mother Hubbard’s dress.” Otherwise there would be no need for supplying defenses to certain classes of persons termed “JUSTIFICATION,” Ark. Stat. Ann. §§ 41-501 — 41-514 (Crim. Code 1976). See Ark. Stat. Ann. § 4 Í -1 10 (Crim. Code 1976) which provides:
“(3) The issue of the existence of a defense need not be submitted to the jury unless evidence is admitted supporting the. defense. If the issue of the existence of a defense is submitted to the jury, the court shall charge that any reasonable doubt on the issue requires that the defendant be acquitted. A defense is any matter:
(c) invoking an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be reqinred to introduce supporting evidence. [Emphasis mine.]
(4) The defendant must prove an ‘affirmative defense’ by a preponderance of the evidence. An ‘affirmative defense’ is any matter:
(a) so designated by a section of this Code; or
(b) so designated by a statute not a part of this Code.”
See also Ark. Stat. Ann. § 41-502 (Crim. Code 1976) which provides:
“In a prosecution for an offense, justification as defined in this chapter [§§41-501 — 41-514] is a defense.”
The record shows that appellant was a Pulaski County Deputy Sheriff at the time of the events giving rise to this prosecution.
For the reasons stated, I respectfully dissent.