James E. ERVIN v. STATE of Arkansas

James E. ERVIN v. STATE of Arkansas CR 77-145 557 S.W. 2d 617 Opinion delivered November 21, 1977 (Division I) Harold L. Hall, Public Defender, by: William R. Simpson, Jr., Dep. Public Defender, for appellant. Bill Clinton, Atty. Gen., by: Robert Lyford, Asst. Atty. Gen., for appellee. [MAJORITY — George Rose Smith, Justice.] George Rose Smith, Justice. On November 2, 1976, the appellant shot and killed Willie E. Briggs, in the course of an argument, as the two were sitting in a car at a parking lot in Little Rock. The appellant testified that he shot because he thought Briggs was about to draw a gun. Charged with second degree murder, the appellant was found guilty and given a 20-year sentence. The court instructed the jury, in the language of the Criminal Code, that a person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. Ark. Stat. Ann. § 41-507 (Crim. Code 1976). The appellant argues that the court should have added the statutory exceptions: That one is not required to retreat if he is in his dwelling and was not the original aggressor, or is a law enforcement officer, or is assisting at the direction of such an officer. Id. The exceptions were not pertinent to the facts in the case; so there was no need for the court to include them in the charge to the jury. Gross v. State, 186 Ind. 581, 117 N.E. 562, 1 A.L.R. 1151 (1917); Adams v. State, 200 Md. 133, 88 A. 2d 556 (1952); Huckleberry v. State, 64 Okl. Cr. 396, 81 P. 2d 493 (1938). Affirmed. We agree. Harris, C.J., and Fogleman and Holt, JJ.