Ark. Code Ann. § 5-10-103 (2026)

Research References

ALR.

Propriety of lesser included offense charge of voluntary manslaughter to jury in state murder prosecution — Twenty-first century cases. 3 A.L.R.6th 543.

Sufficiency of Evidence to Support Homicide Conviction Where No Body Was Produced. 65 A.L.R.6th 359.

Ark. L. Rev.

Case Note, Criminal Liability for Attempting to Inflict the AIDS Virus: Possibilities in Arkansas' Future, 45 Ark. L. Rev. 505.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 5 U. Ark. Little Rock L.J. 115.

Notes, Criminal Law — Child Abuse Resulting in Death — Arkansas Amends its First Degree Murder Statute, 10 U. Ark. Little Rock L.J. 785.

Case Notes

Defenses and Justification.

It was proper to refuse to instruct that, although the defendant provoked a fight with the deceased, if deceased defended himself with a potentially deadly weapon, the defendant should have been acquitted of murder in the second degree. Blair v. State, 69 Ark. 558, 64 S.W. 948 (1901) (decision under prior law).

Where one too drunk to know what he was about assaulted another without provocation and beat him to death, he was guilty of murder in the second degree. Byrd v. State, 76 Ark. 286, 88 S.W. 974 (1905) (decision under prior law).

If a person killed in self-defense or defense of his house, where there were no reasonable grounds of danger, it was manslaughter, but where the deceased was unlawfully attempting to enter the defendant's dwelling house and the killing was with malice and not for protection, it was murder. Hall v. State, 113 Ark. 454, 168 S.W. 1122 (1914) (decision under prior law).

If one voluntarily became too drunk to know what he was about and then without provocation assaulted and beat another to death, he committed murder as if he were sober. Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939) (decision under prior law).

In murder prosecution of defendant who, while intoxicated, beat victim to death, evidence being sufficient to sustain verdict and judgment for murder in first degree, submitting instruction on murder in second degree was not error. Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939) (decision under prior law).

Conviction of defendant for second degree murder was justified even though defendant was drunk at the time of the shooting, as voluntary intoxication was no defense to a charge of murder, for the drinking supplied the malice. Newsome v. State, 214 Ark. 48, 214 S.W.2d 778 (1948) (decision under prior law).

Even if the jury believed that the victim was the original aggressor, it was not established, as a matter of law, that the use of deadly physical force by the defendant was justified. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).

Refusal to give instruction on a person's right to use reasonable force to protect himself and on a person's right to not retreat when in his own home where testimony indicated that the victim was in defendant's home, that the victim threatened to kill defendant, that defendant was scared of the victim and that defendant repeatedly asked the victim to leave him alone but that the victim refused to do so held error. Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982).

Refusal to give his proffered instruction on self-defense was not prejudicial to defendant. Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982).

Accident was an instruction often given by trial courts in the past, but it is neither a defense nor an affirmative defense under the criminal code, rather, it is a position which a defendant may assert to create a reasonable doubt of guilt; accordingly, court in second-degree murder prosecution properly refused to give proposed in instruction on accident. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).

Defendant held not entitled to instruction on justification for use of physical force. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).

Substantial evidence existed to support a second-degree murder conviction because defendant's justification defense could have been reasonably rejected; the jury could have credited testimony indicating that defendant walked towards the victim holding a gun after being told that the girls present did not want to fight. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

In a second-degree murder case, defendant's motion for a directed verdict was properly denied as a jury could find that the defense of justification was without merit because defendant's conduct of intentionally firing eight warning shots at the victim established extreme indifference to human life; the simple act of pointing a loaded gun at the victim was enough to satisfy the intent standard of second-degree murder; and defendant was not justified in using deadly force against the victim as he initiated the situation that brought about his use of deadly force, evidence at the crime scene did not support defendant's assertion that he was backing up when firing shots, and an eyewitness testified that the victim never charged at defendant. Sullivan v. State, 2015 Ark. App. 514, 470 S.W.3d 312 (2015).

Evidence was sufficient to convict defendant of second-degree murder where the State's evidence rebutted defendant's claim of justification; defendant stabbed the victim, threw his knife in a creek, fled the scene, failed to alert law enforcement, and threw away his clothes in a dumpster at a hotel. Moreover, a jailhouse witness testified that defendant had stated that the crime was not committed in self-defense; rather, defendant stated he killed the victim during an attempted theft. Bailey v. State, 2016 Ark. App. 209, 489 S.W.3d 203 (2016).

Evidence was sufficient to support a conviction for second-degree murder because defendant was not justified in using deadly force against the victim based on a belief that the victim was reaching for a gun; defendant was the first and only person to draw a weapon, and surveillance video showed that defendant was the initial aggressor and failed to retreat. Wade v. State, 2017 Ark. App. 157, 516 S.W.3d 772 (2017).

Evidence.

Evidence held insufficient to support a conviction. Tanks v. State, 71 Ark. 459, 75 S.W. 851 (1903) (decision under prior law); Graham v. State, 6 Ark. App. 376, 642 S.W.2d 342 (1982).

Evidence held sufficient to sustain conviction. Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939); Bowman v. State, 213 Ark. 407, 210 S.W.2d 798 (1948); Powell v. State, 213 Ark. 442, 210 S.W.2d 909 (1948); Everett v. State, 213 Ark. 470, 210 S.W.2d 918 (1948); Higdon v. State, 213 Ark. 881, 213 S.W.2d 621 (1948); Stovall v. State, 233 Ark. 597, 346 S.W.2d 212 (1961); Decker v. State, 234 Ark. 518, 353 S.W.2d 168, 98 A.L.R.2d 1 (1962); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Erby v. State, 253 Ark. 603, 487 S.W.2d 266 (1972); Ricketts v. State, 254 Ark. 409, 494 S.W.2d 462 (1973) (preceding decisions under prior law); Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981); Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985); Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), rehearing denied, 292 Ark. 278, 731 S.W.2d 774 (1987), superseded by statute as stated in, Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987); Shipley v. State, 25 Ark. App. 262, 757 S.W.2d 178 (1988); Irvin v. State, 28 Ark. App. 6, 771 S.W.2d 26 (1989); Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990); Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990); Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994); Paige v. State, 45 Ark. App. 13, 870 S.W.2d 771 (1994).

Circumstantial evidence held sufficient to sustain verdict of murder in the second degree. Thomas v. State, 250 Ark. 504, 465 S.W.2d 704 (1971) (decision under prior law); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Tucker v. State, 3 Ark. App. 89, 622 S.W.2d 202 (1981); Ward v. State, 6 Ark. App. 349, 642 S.W.2d 328 (1982).

Evidence held sufficient to support a finding that there was extreme indifference to the value of human life. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978); Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981).

Evidence which tended to prove that defendant acted knowingly rather than accidentally was held to be relevant, and was not rendered inadmissible because it could also be taken to imply that defendant intended to kill his wife. Harris v. State, 265 Ark. 517, 580 S.W.2d 453 (1979).

Admission of photographic evidence held proper. Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981); Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986).

For circumstantial evidence to be sufficient to support a murder conviction, it must exclude every other reasonable hypothesis consistent with innocence, and the question of whether it does exclude every other reasonable hypothesis is usually for the fact finder to determine. Ward v. State, 6 Ark. App. 349, 642 S.W.2d 328 (1982).

Evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).

Trial court's determination that defendant's incriminating statements were voluntarily made held not clearly erroneous. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986).

Testimony of accomplice held sufficiently corroborated to sustain defendant's murder conviction. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986).

Where, in prosecution of a homicide, the defendant did not know at the time of the shooting of the victim that a police officer had discovered a gun in the victim's car two years earlier, the trial court acted properly in refusing to admit the officer's testimony. Sims v. State, 19 Ark. App. 45, 716 S.W.2d 774 (1986).

Summarization of defendant's confession held harmless. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

In prosecution for murder, the presence of blood on clothing and bed linens was relevant and admissible even though the blood could not be typed, because it corroborated the medical examiner's report of the victim's injuries and the defendant's confession. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

There was substantial evidence to support a conviction for second-degree murder under this section where the defendant stated that the gun fired because it had a hair trigger, but a firearms examiner testified that the gun did not have a hair trigger, and testimony adduced at trial indicated that the defendant had tried to run over the victim with a truck before and that he had threatened to hit her in the head with a bottle. Bovee v. State, 19 Ark. App. 268, 720 S.W.2d 322 (1986).

Inflammatory photographs are admissible if they tend to shed light on an issue, enable a witness to better describe the objects portrayed, or enable the jury to better understand the testimony. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Where the trial court considered the questioned photographs, each individually, on two separate occasions at a pre-trial conference and again at trial, it did not admit the photographs with “carte blanche” approval or with a manifest abuse of its discretion. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

Where the trial court twice considered the admissiblity of a videotape of the crime scene showing the house and the body, and placed limitations on the portions that could be published to the jury, it did not abuse its discretion in admitting the tape into evidence. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

The act of pointing a loaded weapon at another person is sufficient to constitute the requisite manifestation of extreme indifference to the value of human life, necessary for a second degree murder conviction under subdivision (a)(1) of this section, regardless of whether there was an actual intent to shoot. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002).

Trial court erred in refusing to admit the opinion testimony of an eyewitness that a shooting had been accidental, because the testimony would have been helpful to the determination of a fact in issue, namely, whether defendant had committed first-degree murder or a lesser included offense. Simpson v. State, 82 Ark. App. 76, 110 S.W.3d 287 (2003), opinion substituted for withdrawn opinion reported at, 119 S.W.3d 83 (Ark. Ct. App. 2003).

Defendant's accomplice's testimony was corroborated and admissible, as other evidence independently established the accomplice's description of the double murder; the medical examiner's testimony, an officer's testimony, and testimony that defendant's van contained substantial blood from the victims, all were in accordance with the accomplice's testimony of the homicide. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003).

In defendant's murder trial, the key witness who was at the scene of the shooting allegedly battered a woman in retaliation against the her for not relaying the information the key witness wanted the woman to impart to the police, but that key witness was not charged with any offense; those matters were relevant, reflecting upon the key witness's interest, motives in testifying, and bias, and the trial court committed reversible error in restricting cross-examination on the subject. Ghoston v. State, 84 Ark. App. 387, 141 S.W.3d 907 (2004).

In a “knock and talk” procedure whereby police officers went to defendants' residence without sufficient probable cause to obtain a search warrant and ask the first defendant to allow them entry and, after gaining entry, informed the her that they were investigating potential criminal activity and requested permission to search, none of the officers informed the second defendant that he had the right to refuse consent to the entry and subsequent search of his home; thus, the trial court should have granted the second defendant's motion to suppress all of the evidence that flowed from that unconstitutional search. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004).

Trial court committed reversible error by admitting co-defendant's statement; it was a violation of defendant's Sixth Amendment right to confront witnesses where, even changing defendant's name to a pronoun, it was obvious that the references were indirect or veiled references to him and substantiated his existence and identity relative to the crime. Jefferson v. State, 86 Ark. App. 325, 185 S.W.3d 114 (2004)def359 Ark. 454, 198 S.W.3d 527 (2004).

There was substantial evidence to support defendant's conviction for the second degree murder of his wife. Given the extent of the wife's injuries and the location of those injuries, the jury could reasonably infer that defendant acted either under circumstances manifesting extreme indifference to the value of human life or with the purpose of causing serious physical injury to his wife. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007).

In a second-degree murder case under this section, defendant's rights under the federal and state Confrontation Clauses were violated by the admission of an incriminating testimonial statement made by defendant's sister relating to his motive and statement of mind; although the sister was unavailable, defendant did not have an opportunity for cross-examination. Moreover, the statement was not offered for a non-hearsay purpose, and the admission of such was not harmless. Seaton v. State, 101 Ark. App. 201, 272 S.W.3d 854 (2008).

Where defendant took a loaded gun from his vehicle after seeing the victim's group outside a department store and deliberately shot the victim three times at close range, the jury could infer that he knowingly caused the victim's death; the trial court did not abuse its discretion by admitting defendant's statement that he shot the victim, because he wanted to give him an early Christmas present. The statement was probative of defendant's state of mind as well as his lack of remorse; because the evidence was sufficient to support defendant's conviction for second degree murder in violation of subdivision (a)(1) of this section, the trial court did not err by denying his motion for a directed verdict. Vorachith v. State, 2009 Ark. App. 656 (2009).

There was sufficient evidence that defendant killed a victim in the course and furtherance of a robbery and there was a nexus between the murder and the robbery where after striking both victims, defendant grabbed the robbery victim and demanded money. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 292 (May 20, 2010).

Defendant's conviction for murder in the second degree in violation of subdivision (a)(1) of this section, with a firearm enhancement, was proper because defendant acted knowingly to cause the victim's death under circumstances manifesting extreme indifference to the value of human life. The issues involved credibility and it was presumed that a person intended the natural and probable consequences of his or her acts; defendant shot her husband in the wrist with a handgun, he bled to death as a result of the wound, and additional evidence indicated that the fatal wound was defensive in nature. Johnson v. State, 2010 Ark. App. 153, 375 S.W.3d 12 (2010).

Defendant's conviction for the second-degree murder of his wife, in violation of subsection (a) of this section, was supported by the evidence because an accident-reconstruction expert testified that the wife's car sustained body damage consistent with it being pushed into the water by defendant's all-terrain vehicle; a medical examiner concluded that she did not drown because she was already deceased before her body entered the water. Holloway v. State, 2010 Ark. App. 767, 379 S.W.3d 696 (2010), review denied, — Ark. —, — S.W.3d —, 2011 Ark. LEXIS 381 (Ark. Jan. 6, 2011).

Appellant's conviction for second-degree murder was affirmed because the pattern of the gunshots, which were aimed at the victim's chest and upper-arm area, as well as the trajectory of the bullets showed that appellant acted deliberately in a manner that would naturally and probably culminate in the victim's death. Phillips v. State, 2011 Ark. App. 575, 386 S.W.3d 99 (2011).

In reviewing the evidence to support appellant's second-degree murder conviction, the court would not consider a 911 call because the record did not contain a verbatim record of the call as the jury heard it and because the call was not properly abstracted. Rainer v. State, 2012 Ark. App. 588 (2012).

Evidence was sufficient to affirm the finding that appellant caused the victim's death with the purpose of causing her serious physical injury, and thus appellant's second-degree murder conviction was affirmed; there were many signs of a fight, including blood spatters and a trail of blood, appellant's thumbprint was on the murder weapon, the location of the victim's wound was not consistent with a fall, and the victim called for help, not appellant. Rainer v. State, 2012 Ark. App. 588 (2012).

Evidence was sufficient to convict defendant of second-degree murder as the jury could have reasonably inferred that she intended to seriously injure the victim because she used scissors, an instrument that could be a deadly weapon; the cumulative number of injuries, which was 68, gave rise to the inference that she intended serious harm; most of the injuries were inflicted to the victim's face and head; and an officer testified that defendant told him that she had wanted to kill the victim. Hooks v. State, 2013 Ark. App. 728, 431 S.W.3d 333 (2013).

Defendant waived his sufficiency argument for his second-degree-murder conviction as his directed-verdict motion was based on first-degree murder, and the evidence supported a conviction for second-degree murder. Burnell v. State, 2016 Ark. App. 10 (2016).

Evidence was adequate to support the jury's finding that defendant knowingly caused the victim's death where it showed that he took a loaded rifle from his truck and shot it at the victim from a distance of approximately 65 feet, he admitted that he pulled the trigger at least 13 times, and he did not dispute that five shots hit the victim and caused his death. Draft v. State, 2016 Ark. App. 216, 489 S.W.3d 712 (2016).

Substantial evidence supported the jury's verdict convicting defendant of the second-degree murder of a six-month-old child. The child's death was due to violent shaking, and the jury could reasonably infer that defendant was the person responsible. Dulle v. State, 2019 Ark. App. 378, 582 S.W.3d 28 (2019).

Circumstantial evidence was sufficient to support defendant's second-degree murder conviction; he was the last person to be with the victim before her death, after the victim's family lost contact with her, defendant had her car keys and the cell phone her mother had loaned her, and defendant told the victim's family and friends three different stories about where she was. Gonzales v. State, 2019 Ark. App. 600, 589 S.W.3d 505 (2019).

Defendant's choking of another person for 15 seconds years prior was not independently relevant to show knowledge, intent, or absence of mistake; it was clear that the State used the prior act evidence to argue that because defendant had choked a previous girlfriend, he was acting in conformity with his prior bad acts and strangled the victim, which was strictly prohibited under Ark. R. Evid. 404(b). Gonzales v. State, 2019 Ark. App. 600, 589 S.W.3d 505 (2019).

State's attempt to convince the jury that defendant had to be guilty of strangulation based on the evidence that he previously choked his former girlfriend in an unrelated domestic dispute was the embodiment of the danger of unfair prejudice contemplated by Ark. R. Evid. 403, and the admission was not harmless. While the circumstantial evidence was sufficient to support a conviction, it was hardly overwhelming. Gonzales v. State, 2019 Ark. App. 600, 589 S.W.3d 505 (2019).

—Causation.

Sufficient evidence supported defendant's conviction for second-degree murder; while the concurrent causes—the surgical complications, ensuing epidural hematoma, and pneumonia—might have contributed to the victim's death, defendant's conduct in beating and kicking the victim in the head, thereby causing the initial subdural hematoma, was the cause of his death. Claggett v. State, 2019 Ark. App. 208, 575 S.W.3d 169 (2019).

Felony Murder.

Where defendant and his accomplices fired gunshots seven or eight minutes after robbing two men, they fled in the murder victim's car to avoid being arrested. The jury was free to find that the murder occurred in the course of the aggravated robbery committed in violation of this section; therefore, the evidence was sufficient to support defendant's conviction for first-degree felony murder under § 5-10-102. Rhodes v. State, 2009 Ark. App. 665 (2009).

Indictment or Information.

Indictment or information held sufficient. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980).

Instructions.

Refusal to instruct the jury on lesser degree of homicide held proper. Gilchrist v. State, 241 Ark. 561, 409 S.W.2d 329 (1967) (decision under prior law).

Instruction on second-degree murder which provided alternate theories by which the defendant could be convicted held to be proper. McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982).

In a capital felony murder instruction on the lesser included offense of second-degree murder held not to have prejudiced the defendant. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).

Failure to give proffered instruction on manslaughter where there was evidence presented on which the jury might have found that defendant recklessly caused the death of his brother was prejudicial error. Williams v. State, 17 Ark. App. 53, 702 S.W.2d 825 (1986).

The trial judge did not err in refusing to give the defendant's requested instruction on accident where the defendant's argument that the shooting was accidental could have been, and was, addressed to each charge of first degree murder, second degree murder, and manslaughter, and its appropriately defined mental state, and all requisite mental states were before the jury in proper instructions. Sims v. State, 19 Ark. App. 45, 716 S.W.2d 774 (1986).

Where the defendant was found guilty of second degree murder, the trial court did not err in refusing to give an instruction on negligent homicide; it is not error to refuse to give an instruction on one lesser included offense if other lesser offenses were covered by the instructions given and the jury returned a verdict for the greater offense. Sims v. State, 19 Ark. App. 45, 716 S.W.2d 774 (1986).

In a prosecution for second degree murder, the trial court committed reversible error when it refused to give a proffered manslaughter instruction where (1) the defendant intervened in an argument between the victim and the mother of his child, (2) during the ensuing conversation, the victim stated, “If I got a problem, I just boom-boom-boom, like that,” and all of the witnesses who were present took the victim's remarks to mean that he would shoot a gun to end any problem, (3) the defendant and the victim thereafter walked to their respective cars, (4) the defendant retrieved a shotgun from the trunk of his car, and the victim stood by the driver's side door of his car and reached down into the car through the open window, (5) as the victim came back up from reaching into the car, the defendant shot him in the chest, and (6) the defendant testified that he was afraid of the victim because he was acting and talking crazy and that he thought the victim was about to shoot him. Harshaw v. State, 71 Ark. App. 42, 25 S.W.3d 440 (2000), aff'd, 344 Ark. 129, 39 S.W.3d 753 (Ark. 2001).

The defendant in a prosecution for second degree murder was entitled to have the jury instructed with regard to the lesser included offense of manslaughter, since there was some evidence suggesting that the victim posed a real or deadly threat to the defendant, where witnesses testified that the victim made threatening remarks and reached for something in his car immediately prior to the homicide. Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (Ark. 2001).

In addition to instructions on the elements of capital murder, the jury was instructed on lesser included offenses of first-degree murder, second-degree murder, and manslaughter, and defendant not assert that the model jury instructions inaccurately reflected the law; thus, despite his contention that his proffered instructions were more inclusive and a more clear statement of the law on the various issues, the trial court did not err in refusing to submit them to the jury in his capital murder case. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764 (2009), cert. denied, 559 U.S. 1021, 130 S. Ct. 1922, 176 L. Ed. 2d 392 (2010).

In a first-degree murder case, the trial court did not abuse its discretion in instructing the jury on the lesser-included offense of second-degree murder because the evidence provided a rational basis for an acquittal on the first-degree-murder charge and a conviction on the second-degree-murder charge as defendant did not shoot and kill the victim, but handed his gun to codefendant; defendant could not have known with absolute certainty what codefendant would do; and the jury could have concluded that defendant knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life in that he was practically certain that his conduct would cause the death of the victim. Northern v. State, 2015 Ark. App. 426, 467 S.W.3d 755 (2015).

Defendant, charged with first-degree murder, was not entitled to a second-degree murder instruction because the evidence consistently showed defendant shot the victim in the head at close range in the absence of any provocation. Dixon v. State, 2019 Ark. 245, 581 S.W.3d 505 (2019).

Intent.

Actual intent to take life was not a necessary element in the crime of murder in the second degree. Brassfield v. State, 55 Ark. 556, 18 S.W. 1040 (1892); Byrd v. State, 76 Ark. 286, 88 S.W. 974 (1905); Petty v. State, 76 Ark. 515, 89 S.W. 465 (1905); Tolliver v. State, 113 Ark. 142, 167 S.W. 703 (1914); Price v. State, 114 Ark. 398, 170 S.W. 235 (1914); Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939); McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949); Rand v. State, 232 Ark. 909, 341 S.W.2d 9 (1960); Seabourn v. State, 236 Ark. 175, 365 S.W.2d 133 (1963) (preceding decisions under prior law).

Malice was a necessary element of murder. Ballentine v. State, 198 Ark. 1037, 132 S.W.2d 384 (1939) (decision under prior law).

It was a question for the jury to decide in a case charging defendant with murder, whether repeated violent attacks by defendant on a much older man culminating in death amounted to malice on the part of the defendant. McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949) (decision under prior law).

The presence or absence of malice distinguished between murder in the second degree and manslaughter, and malice was implied whenever there was a killing with a deadly weapon and no circumstances of mitigation, justification or excuse appeared at the time of the killing. Erby v. State, 253 Ark. 603, 487 S.W.2d 266 (1972) (decision under prior law).

Evidence held sufficient to show sufficient malice to support conviction. Ricketts v. State, 254 Ark. 409, 494 S.W.2d 462 (1973) (decision under prior law).

State must show that the defendant acted with an awareness of his conduct and the relevant attendant circumstances and that his conduct was practically certain to cause the death of the victim. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978); Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).

Evidence held sufficient to support a verdict that defendant “knowingly” caused another's death. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978).

Failure of proof of premeditation and deliberation may still result in a conviction of second-degree murder which only requires a purposeful homicide or a homicide which was knowingly caused under circumstances manifesting extreme indifference to the value of human life. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980).

A person acts “knowingly” when he is aware of the nature of his conduct, the attendant circumstances and that his conduct is practically certain to cause the result. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980).

Evidence held insufficient to justify conclusion that defendant was aware that his conduct was practically certain to cause the death of another person. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980).

Where information contained no language addressing a question of premeditation and deliberation, the defendant could be convicted of no crime greater than second-degree murder. Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

Repeated blows to the head by kicking or “stomping” when the victim was down exhibited purposeful action to inflict serious physical injury, whether it be risk of death or protracted disfigurement or impairment. Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993).

Where defendant shot the victim at point-blank range with a shotgun, there was sufficient evidence for the jury to conclude that he “knowingly” caused death under circumstances manifesting extreme indifference to the value of human life as required for a conviction for second-degree murder under subdivision (a)(1) of this section. Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002).

In a case in which defendant was convicted of the second degree murder of his wife, the jury could infer defendant's guilt from his efforts to conceal the crime from the authorities and his family and friends. Defendant concealed the killing of his wife by burying her, covering her grave with a barrel and sod, and storing her personal belongings in his storage unit. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007).

Judicial Review.

On appeal the evidence will be viewed in the light most favorable to the defendant, and the verdict will be affirmed if there is substantial evidence to support it. Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).

Lesser Included Offenses.

Second-degree murder is not a lesser included offense of capital felony murder. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Second-degree murder is a lesser included offense of capital murder only if the accused's mental state is an element of the offense. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), overruled in part, McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), but see McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), restating the test for determining when an offense is included in another offense.

Evidence that supports a finding that a defendant has acted knowingly under circumstances manifesting an extreme indifference to the value of human life rather than purposely entitles a defendant to a jury instruction on attempted second-degree murder pursuant to subsection (a)(1); under that circumstance attempted second-degree murder is a lesser included offense of attempted first degree murder as defined by § 5-10-102(a)(2). McCoy v. State, 74 Ark. App. 414, 49 S.W.3d 154 (2001), aff'd, 347 Ark. 913, 69 S.W.3d 430 (2002).

In defendant's first-degree murder case, the court erred by refusing a requested second-degree murder instruction where (1) there was evidence that defendant got into an argument with his wife that escalated into physical violence, (2) when she began hitting him and threatening to kill him, defendant reacted by putting her in a headlock, or possibly choking her, or putting his arms around her neck, and (3) he did not let go until she died; based on the evidence, the jury could have found that defendant assaulted his wife, knowing his conduct was practically certain to cause her death, while being extremely indifferent to the value of human life. Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004).

Aggravated robbery is not a lesser included offense of attempted capital murder because, while an aggravated-robbery charge shares the intent to rob with attempted capital murder, aggravated robbery also requires one of three other elements. Two of those elements, being armed with a deadly weapon, or representing as such, are unique to aggravated robbery, and the third possible element of aggravated robbery is having inflicted or attempted to inflict death or serious physical injury upon another, which is not equivalent to the element in attempted capital murder that a defendant, in the course of or in flight from such robbery, caused the death of a person under circumstances manifesting extreme indifference to the value of human life. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Prohibition against double jeopardy was not violated when defendant was convicted of aggravated robbery and attempted capital murder because the robbery was the underlying felony, and aggravated robbery was not the lesser included offense of attempted capital murder. Clark v. State, 373 Ark. 161, 282 S.W.3d 801 (2008).

Denial of postconviction relief was proper, because the petitioner failed to show the second-degree-murder instruction added an extra element not present in the greater offense of first-degree murder and that counsel should have objected; Second-degree murder was a lesser-included offense of first-degree murder, as it differed from the greater offense only to the extent that it required a lesser kind of culpable mental state. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462 (2013).

Cited: Bevills v. State, 264 Ark. 846, 575 S.W.2d 443 (1979); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982); Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599 (1982); Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982); Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985); Spillers v. Lockhart, 802 F.2d 1007 (8th Cir. 1986); Rode v. Lockhart, 675 F. Supp. 491 (E.D. Ark. 1987); O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989); Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989); Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992); Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996).