Martin v. State, CR76-201

• Decision Date: 22 February 1977
• Docket Number: No. CR76-201,CR76-201
• Citation: 261 Ark. 80,547 S.W.2d 81
• Parties: Franklin D. MARTIN, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 81

547 S.W.2d 81

261 Ark. 80

Franklin D. MARTIN, Appellant, v. STATE of Arkansas, Appellee.

No. CR76-201.

Supreme Court of Arkansas, In Banc.

Feb. 22, 1977.

Rehearing Denied March 28, 1977.

Harold L. Hall, Public Defender by Robert W. Govar, Deputy Public Defender, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen. by Frederic L. Frawley, Asst. Atty. Gen., Little Rock, for appellee.

ROY, Justice.

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(1)(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 subsection 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 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" that 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., 185 Colo. 78, 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.

FOGLEMAN, Justice, concurring.

I concur in the majority opinion, but because of the dissents, I feel compelled to state my concurrence in this separate opinion.

I will first address the fallacy in the conclusion of Mr. Justice Byrd that the Arkansas Criminal Code section under which appellant was charged, Ark.Stat.Ann. § 41-1601(1)(c) (Crim.Code, 1976), when considered with the general section defining culpable mental state, Ark.Stat.Ann. § 41-203 (Crim.Code, 1976) results in a requirement that one have a conscious object to cause serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life in order to be guilty of battery in the first degree.

First, I would point out that Justice Byrd's recitation of the definition of culpable mental state is incomplete. It omits the definitions of three of the four kinds of the required mental state. Two of the three kinds he omitted to mention are:

(2) "Knowingly." A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

(3) "Recklessly." A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. (Emphasis mine.)

The seriousness of this omission is apparent when we proceed to Ark.Stat.Ann. § 41-204(2) and (3) (Crim.Code, 1976), which provides:

(2) * * * (I)f 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. (Emphasis mine.)

(3) * * * When acting recklessly suffices to establish an element, the element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, the element also is established if a person acts purposely.

A reading of these pertinent subsections of the Criminal Code clearly shows the error in the conclusion that a conscious object to cause a result is a necessary requisite to establish the offense.

Reference to portions of the commentary to the pertinent sections leaves absolutely no room for doubt about the matter. This Commentary was before the General Assembly when the Code was adopted. The Commentary on Ark.Stat.Ann. § 41-203 includes the following:

Section 203 promotes specificity and lucidity throughout the Code by defining the four culpable mental states utilized in turn to define Code offenses. * * *

The Code recognizes four distinct culpable mental states: a person may act purposely, knowingly, recklessly, or negligently. These culpable mental states, taken in...