Ark. Code Ann. § 5-10-105 (2020)

Research References

ALR.

Alcohol-related homicides. 64 A.L.R.4th 166.

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.

Establishment of Negligence Within Meaning of Statute Penalizing Negligent Homicide by Operation of Motor Vehicle — Speeding or Driving at Unsafe Speed. 84 A.L.R.6th 427.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Criminal Law, 1 U. Ark. Little Rock L.J. 153.

Survey — Criminal Law, 10 U. Ark. Little Rock L.J. 559.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Construction.

Where the statute defined what blood alcohol content (BAC) could not be presumed as intoxication as well as the range of BAC that could be used as a factor in proving intoxication, it was reasonable to assume that a BAC above the referenced amounts may alone have been determined to be proof of intoxication. Fowler v. State, 2014 Ark. App. 460, 441 S.W.3d 41 (2014).

Accomplice or Accessory.

Defendant could be convicted as an accessory, when knowing intoxicated condition of employee, he instructed him to drive a truck. Stacy v. State, 228 Ark. 260, 306 S.W.2d 852 (1957) (decision under prior law).

Burden of Proof.

It being incumbent for the state to prove the corpus delicti, failure to prove the cause of death could be fatal to the state's case and although the state might have had the right to rely on the defendant's admission in open court that the deaths were the result of a collision between a large truck which he had left stalled on the road on a dark night and the car in which the decedents were riding, the state was not required to rely on such admission to establish the corpus delicti. Williams v. State, 229 Ark. 1022, 322 S.W.2d 86 (1959) (decision under prior law).

In a prosecution for negligent homicide the state was not required to prove that the defendant was the sole cause of the victim's death, only that he was a contributing cause. Courtney v. State, 14 Ark. App. 76, 684 S.W.2d 835 (1985).

Contributory Negligence.

Doctrine of contributory negligence held inapplicable. Benson v. State, 212 Ark. 905, 208 S.W.2d 767 (1948) (decision under prior law).

In a prosecution for negligent homicide contributory negligence by the victim would not lessen the defendant's culpability. Courtney v. State, 14 Ark. App. 76, 684 S.W.2d 835 (1985).

Double Jeopardy.

If defendant pleaded guilty to information for drunken driving in justice of peace court, and was later charged with felony of involuntary manslaughter, plea of former jeopardy was not good, as drunken driving and homicide growing out of the same act were two separate offenses, related not by definition, but only by concurrence in time and space. Campbell v. State, 215 Ark. 785, 223 S.W.2d 505 (1949) (decision under prior law).

Driving while intoxicated is an essential component of the crime of negligent homicide, since it is necessary to prove that defendant was driving while intoxicated in order to prove that he had committed negligent homicide; consequently, a defendant cannot be convicted of both offenses. Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993).

Evidence.

Evidence held sufficient to support conviction. Edwards v. State, 110 Ark. 590, 163 S.W. 155 (1914); Phillips v. State, 204 Ark. 205, 161 S.W.2d 747 (1942); Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975); Flippo v. State, 258 Ark. 233, 523 S.W.2d 390 (1975) (preceding decisions under prior law); Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978).

Evidence was sufficient to prove intoxication of the defendant where the investigating officers reported a strong smell of alcohol, the defendant struck the victim's horse trailer although it was parked well off the road, the defendant had bloodshot eyes, and the defendant refused to take a blood test. Hatley v. State, 68 Ark. App. 209, 5 S.W.3d 86 (1999).

Evidence held sufficient to establish negligent homicide arising from a head-on collision which occurred when a 15 year old defendant passed a logging truck and collided with on oncoming vehicle where the defendant testified (1) that he had previously operated a vehicle on the same highway and was fairly familiar with the roads, as well as the double-yellow, no-passing lines, (2) that it was raining as he was following behind the logging truck for a couple of miles and that he had his mind set on passing the truck, (3) that although he was unable to see because of the mist and spray coming from the back of the logging truck, he still attempted to pass it as he crossed double yellow lines going up a hill, and (4) that when he began to pass, the mist and spray only cleared when he was about “one-third of the way up the truck,” and that was when he first saw the vehicle coming from the opposite direction over the crest of the hill. Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000).

Evidence was sufficient to support defendant's conviction of negligent homicide where the jury could conclude that defendant's failure to perceive the risk under the facts constituted a gross deviation from the standard of care that a reasonable person would observe in defendant's position. Utley v. State, 366 Ark. 514, 237 S.W.3d 27 (2006).

Defendant's convictions for manslaughter, in violation of § 5-10-104(a)(3), were modified to the lesser-included offense of negligent homicide under subdivision (b)(1) of this section because defendant's acts of crossing the center line, tailgating, and averting defendant's eyes from the road constituted negligence, not recklessness under § 5-2-202(3). Rollins v. State, 2009 Ark. App. 110, 302 S.W.3d 617 (2009), rev'd, 2009 Ark. 484, 347 S.W.3d 20 (2009).

Appellants' convictions for negligent homicide in the death of their daughter were affirmed; given the record—which included appellants allowing three hours to pass without checking on or knowing the whereabouts of their twenty-two-month-old child—the instant court could not say that the verdicts were not supported by substantial evidence. Marin v. State, 2009 Ark. App. 802 (2009).

Substantial evidence supported defendant's conviction under subdivision (a)(1)(B)(i) of this section where his blood had been drawn within the timeframe permitted by § 5-65-206(a) and his BAC was 0.16, which was twice the legal limit. Fowler v. State, 2014 Ark. App. 460, 441 S.W.3d 41 (2014).

Evidence was sufficient to sustain defendant's negligent homicide conviction where the eyewitness and investigating officer testimony as to the road conditions and lack of water puddles at the scene of the accident allowed the jury to infer that defendant's car had not hydroplaned, and there was no evidence that defendant had braked, swerved, or otherwise done anything to avoid hitting the victim. Sizemore v. State, 2015 Ark. App. 295, 462 S.W.3d 364 (2015).

Substantial evidence supported defendant's conviction of misdemeanor negligent homicide; the weather conditions were clear on the night in question, defendant was observed crossing five lanes of traffic at high speed and rolling his vehicle, the vehicle's black box indicated that the brakes were never engaged, plus three cans of air duster had been purchased minutes before the accident and a blood sample had detected the presence of difluoroethane, a gas found in air-duster canisters, in defendant's blood. Sizemore v. State, 2015 Ark. App. 728, 478 S.W.3d 281 (2015).

Circuit court did not err in denying defendant's motion for a directed verdict on the negligent homicide charges given the testimony that defendant and his car smelled of alcohol when a witness arrived on the scene, defendant smelled of alcohol and appeared to be impaired when officers arrived at his stepsister's house hours later, and the argument that the driver of the other car could have been the cause of the accident had not been preserved for review. Rabion v. State, 2017 Ark. App. 538, 532 S.W.3d 598 (2017).

Substantial evidence did not support the verdict of guilty of four counts of negligent homicide where there was no evidence that defendant was speeding, driving erratically, under the influence of alcohol, or using a phone when the accident occurred, he did not receive a traffic citation for his conduct, and the State failed to present any evidence that defendant's purpose for bending over, given the situation, amounted to a gross deviation from the standard of care. Ledwell v. State, 2019 Ark. 334, 587 S.W.3d 536 (2019).

Expungement.

Circuit court erred by sealing the applicant's conviction for negligent-homicide pursuant to this section, because given the plain meaning of this section, the statute lacked any provision for expungement. State v. Martin, 2012 Ark. 191 (2012).

Instructions.

Instruction regarding defendant's intoxication at the time of the killing was properly refused where it required a finding that the defendant acted willfully. Nichols v. State, 187 Ark. 999, 63 S.W.2d 655 (1933) (decision under prior law).

Refusal to give offered instruction on negligent homicide held error. Langley v. State, 261 Ark. 539, 549 S.W.2d 799 (1977); Worring v. State, 2 Ark. App. 27, 616 S.W.2d 23 (1981).

Where the defendant was found guilty of second degree murder, the trial court did not err in refusing to give an instruction of 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).

Where the defendant admitted to purposely shooting the victim, there was no rational basis for a negligent homicide instruction. McDonald v. State, 42 Ark. App. 37, 852 S.W.2d 833 (1993).

There was no abuse of discretion in a trial court's refusal of defendant's proffered negligent homicide jury instruction because there was no rational basis for the instruction where defendant swung a two-by-four hard at the victim's head and there was no evidence that defendant was unaware that such conduct, or the risk of such conduct, would result in the victim's death. 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).

In a case in which a jury convicted defendant of capital murder in the shooting death of his ex-wife, the trial court properly refused to instruct the jury on reckless manslaughter and negligent homicide. Defendant, who fired once into a residence, mortally striking his ex-wife in the back, offered no rational basis to support giving either instruction on the basis that his actions were reckless or negligent. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411 (2012).

Because there was no negligent behavior on the part of defendant pursuant to § 5-2-202(4), his action were purposeful, and a firearm and toolmark examiner for the Arkansas State Crime Lab testified that for the gun to be fired, the trigger had to be pulled, which usually required five to five and a half pounds of pressure, the trial court did not err in refusing to give the jury an instruction on negligent homicide under subdivision (b)(1) of this section. Ratterree v. State, 2012 Ark. App. 701 (2012).

Defendant's argument that the trial court erred in refusing to give a jury instruction on the lesser-included offense of negligent homicide was not preserved for review because defendant failed to proffer a written copy of his proposed instruction. Campbell v. State, 2017 Ark. App. 340, 525 S.W.3d 465 (2017).

Intoxication.

If the state proceeded against defendant first on driving while intoxicated charges and he were acquitted, the state would be collaterally estopped from proceeding against him in a second trial for negligent homicide; however, the same result does not apply when the two offenses are tried simultaneously. McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993).

Although the circuit court erred in allowing the results of defendant's blood-alcohol test into evidence since the state failed to provide evidence that the blood was drawn by a physician or a person acting under the direction and supervision of a physician as required by § 5-65-204, defendant was properly convicted of negligent homicide in violation of this section and aggravated assault in violation of § 5-13-204 because there was overwhelming evidence of defendant's intoxication; while the only evidence regarding the concentration of alcohol in defendant's blood came from the blood test, there was sufficient evidence at trial to support defendant's conviction on the alternative theory that defendant negligently caused the victim's death as a result of operation of a motor vehicle while intoxicated. Bates v. State, 2011 Ark. App. 446, 384 S.W.3d 654 (2011).

In a case in which defendant was convicted of negligent homicide under subdivision (a)(1)(a) of this section, there was substantial evidence that defendant was intoxicated at the time of the accident where: (1) defendant admitted at trial that he had smoked marijuana earlier in the day of the accident and that he had ingested a pill and a half of Xanax shortly before the accident occurred; (2) the driver of a tractor-trailer rig testified that defendant's vehicle veered into his lane and narrowly missed his vehicle and that he saw defendant continue on the wrong side of the road for approximately three-fourths of a mile, without correcting, before striking the victims' vehicles; and (3) another driver testified that he drove off the shoulder of the road to avoid defendant's vehicle and that, when defendant passed him, defendant was leaning against the driver-side door of his vehicle and appeared to be asleep. Ross v. State, 2012 Ark. App. 243 (2012).

Lesser-Included Offenses.

Negligent homicide, which requires a lesser culpable mental state than manslaughter, is a lesser included offense of manslaughter. Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978).

Negligent homicide instruction was not warranted because there was no rational basis to conclude that defendant's actions were merely negligent where defendant reached under his car seat, chambered a round, and intentionally fired the weapon directly at the victim's chest. Bennett v. State, 2014 Ark. App. 624, 447 S.W.3d 602 (2014).

Circuit court did not err in refusing to give instructions on negligent homicide where defendant intentionally fired three shots at the victim at fairly close range, and thus, there was no evidence to justify a finding that he was unaware that his conduct would have resulted in the victim's death. Schnarr v. State, 2017 Ark. 10 (2017).

Trial court did not err in failing to instruct the jury on negligent homicide because it was not a lesser-included offense of unlawful discharge of a firearm from a vehicle, and defendant's proffered instruction did not meet any of the three alternative tests set out in § 5-1-110 where the culpable mental state for negligent homicide was directed at the act of causing the death of another person and the culpable mental state for first-degree unlawful discharge of a firearm from a vehicle was directed at the act of discharging the firearm. Webb v. State, 2019 Ark. App. 436, 587 S.W.3d 252 (2019).

Method of Analysis.

—Time.

Substantial evidence supported defendant's conviction under subdivision (a)(1)(B)(i) of this section where his blood had been drawn within the timeframe permitted by § 5-65-206(a) and his BAC was 0.16, which was twice the legal limit. Fowler v. State, 2014 Ark. App. 460, 441 S.W.3d 41 (2014).

Multiple Offenses.

Where three persons were killed as the result of being struck by a car driven by the defendant, the defendant was charged in three separate informations and was tried and convicted for killing of one of the persons. Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625 (1949) (decision under prior law).

Murder or Manslaughter.

Subsection (a)(1) does not reflect a legislative intent that a person responsible for the death of another in an alcohol-related, vehicular accident must exclusively be charged with negligent homicide; by its plain wording, subsection (a)(1) expressly allows for murder or manslaughter charges to arise from a homicide involving the operation of an automobile. Simmerson v. State, 71 Ark. App. 16, 25 S.W.3d 439 (2000).

In defendant's trial for criminally negligent homicide, the trial court erred in failing to grant defendant's motion for directed verdict where the state's evidence that defendant's truck merely crossed the center line of a road was insufficient to support a finding of criminal negligence; this was a different standard from the evidence needed to support a finding of civil negligence. Utley v. State, 93 Ark. App. 381, 219 S.W.3d 709 (2005), rev'd, 366 Ark. 514, 237 S.W.3d 27 (2006).

Preservation for Review.

Defendant's conviction for negligent homicide was appropriate because she failed to preserve for appellate review her contention that the judge erred in finding that she engaged in criminally negligent conduct and that the conduct caused the death of the pedestrian victim because the evidence was insufficient to support the conviction. Even though defendant's counsel made a specific argument to the judge, he never asked for dismissal but argued instead that the state had not met its burden of proving negligence, causation, beyond a reasonable doubt; the reasonable-doubt language was associated with a closing argument and not a motion to dismiss under Ark. R. Crim. P. 33.1, where substantial evidence was the test. Grube v. State, 2010 Ark. 171, 368 S.W.3d 58 (2010).

Reckless Driving.

For cases discussing negligent homicide by reckless driving, see Bowen v. State, 100 Ark. 232, 140 S.W. 28 (1911); Madding v. State, 118 Ark. 506, 177 S.W. 410 (1915); Campbell v. State, 215 Ark. 785, 223 S.W.2d 505 (1949); Montaque v. State, 219 Ark. 385, 242 S.W.2d 697 (1951); Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952), superseded by statute as stated in, Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993); Roller v. State, 225 Ark. 359, 283 S.W.2d 150 (1955); Bentley v. State, 252 Ark. 642, 480 S.W.2d 346 (1972) (preceding decisions under prior law).

That state might have prosecuted motorist for negligent homicide under § 27-50-307 did not preclude prosecution under former statute defining involuntary manslaughter. Phillips v. State, 204 Ark. 205, 161 S.W.2d 747 (1942) (decision under prior law).

State could have based its prosecution for negligent death by automobile under either former section defining involuntary manslaughter or under § 27-50-307. Campbell v. State, 215 Ark. 785, 223 S.W.2d 505 (1949) (decision under prior law).

Scrivener's Error.

Although defendant was found guilty of committing misdemeanor negligent homicide, the sentencing order incorrectly recited that he was convicted of the offense of negligent homicide, a Class B felony, and this scrivener's error was to be corrected. Sizemore v. State, 2015 Ark. App. 728, 478 S.W.3d 281 (2015).

Self-Defense.

One who slayed another under the honest belief that his life or limb was in imminent peril and acted to prevent the apprehended danger was in the exercise of a lawful act; but unless he acted with due caution and circumspection he was guilty of manslaughter. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (decision under prior law).

Standard of Care.

In a prosecution for homicide the state was required to prove a higher degree of negligence than was ordinarily contemplated to establish liability in civil actions. Benson v. State, 212 Ark. 905, 208 S.W.2d 767 (1948) (decision under prior law).

An instruction containing the language of § 5-2-202 correctly and adequately defines the negligence required of this section. Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978).

Evidence held sufficient that jury could and did find that defendant should have been aware of the substantial and unjustifiable risk of harm under the circumstances and that the circumstances were such that his failure to perceive it involved a gross deviation from the standard of care that a reasonable person would observe in the same situation. Phillips v. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).

Circuit court erred in denying defendant's motion to dismiss a negligent homicide charge under subdivision (b)(1) of this section; although there was no question that defendant's failure to see the decedent's vehicle resulted in the fatal accident, there was no evidence that defendant was speeding, driving erratically, under the influence of alcohol, using a phone, or engaged in some similar conduct, and thus, the evidence fell short of establishing criminal negligence. Gill v. State, 2015 Ark. 421, 474 S.W.3d 77 (2015).

Cited: Smith v. State, 15 Ark. App. 266, 692 S.W.2d 622 (1985); Bramlett v. Hobbs, 2015 Ark. 146, 463 S.W.3d 283 (2015).

Beulah v. State, 352 Ark. 472, 101 S.W.3d 802 (2003).