Ark. Code Ann. § 5-2-608 (2020)

Case Notes

Evidence.

Defendant was entitled to have the jury consider all the conduct of the decedent in order to determine whether there was a necessity for defendant to act in defense of another or the defense of his household. Brockwell v. State, 260 Ark. 807, 545 S.W.2d 60 (1976).

Preponderance of the evidence supported the district court's finding that defendant's use of deadly physical force under § 5-2-601(2) and (6)(B), which occurred when he pointed a loaded pistol at an undercover officer, was not justified or in self defense, and thus, he was guilty of the felony of aggravated assault under Arkansas law, and the four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5), now (b)(6), was properly imposed because (1) defendant did not act in self-defense within the meaning of § 5-13-204(c)(2) as he used deadly force against men who had obeyed his command to leave his property and who were loitering on the public sidewalk in front of his house as there was no evidence they were imminently endangering defendant's life under § 5-2-607(a); (2) under § 5-2-607(b)(1), defendant could not use deadly force after he had retreated safely to his house and returned later, unprovoked, to threaten the men; (3) defendant's conduct was not justified as permissible defense of his property within the purview of this section because use of deadly physical force was not authorized by § 5-2-607, and he had no reason to believe that the men who had quietly obeyed a command to leave his property would come back to commit arson or burglary; and (4) defendant's conduct was not justified to defend his home under § 5-2-620 because the men defendant assaulted were not attempting to enter his home, so the statute did not apply. United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Defendant's conviction for battery in the second degree was proper because he did not have a justification defense under subsection (a) of this section since his version of the events was unbelievable; any reasonable person would have realized that the victim was acting on behalf of a repossession agency and therefore, defendant could not have been acting on a reasonable belief that he was preventing a criminal trespass. There was also no evidence to indicate that the victim used force against defendant or threatened him with force. Washington v. State, 2010 Ark. App. 339, 374 S.W.3d 822 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 379 (June 24, 2010).

Guests.

A guest had the same right as his host to resist a violent attempt of another to enter the house for the purpose of assaulting “any person dwelling or being therein.” King v. State, 55 Ark. 604, 19 S.W. 110 (1892) (decision under prior law).

Instructions.

Giving an instruction to show that the theory of the state in a prosecution for manslaughter was that deceased had abandoned the controversy and that defendant renewed it was not error, where defendant's theory of self-defense and defense of home and property was fully presented in other instructions given. Connelly v. State, 233 Ark. 826, 350 S.W.2d 298 (1961) (decision under prior law).

Jury Question.

Whether assault was justified as in defense of accused's home was for jury. Davis v. State, 206 Ark. 726, 177 S.W.2d 190 (1944) (decision under prior law).

Retreat.

One who was assaulted in his own home was not bound to retreat, and if the circumstances were such as reasonably to cause the defendant to believe that he was in imminent danger of losing his own life or of receiving great bodily harm and he did so believe, then he was justified in using the force necessary to protect himself and, if necessary, to this end, he could kill the assailant. Elder v. State, 69 Ark. 648, 65 S.W. 938 (1901) (decision under prior law).

State of Mind.

Verdict for defendant was authorized by evidence that defendant in his own premises shot decedent believing him to be armed and fearing an attack. Phillips v. Turney, 198 Ark. 364, 129 S.W.2d 963 (1939) (decision under prior law).

Instruction that if accused made the assault acting in good faith as a reasonable person under apprehension that his house or residence was about to be entered by some person for purpose of committing burglary or robbery or assaulting any person dwelling therein, and that he fired the shots under that belief in good faith, he would not be guilty, was proper. Davis v. State, 206 Ark. 726, 177 S.W.2d 190 (1944) (decision under prior law).