manslaughter instruction and the trial court did not err.
Cobb v. State, 340 Ark. at 246, 12 S.W.3d at 198. In Cobb, there was no evidence that the victim posed either a real or imagined threat. Thus, there was no reasonable basis in the evidence for a jury to conclude that the defendant in Cobb could have formed a belief, recklessly or otherwise, that his life was in danger. In contrast, there was some evidence in this case suggesting that the victim posed a real or deadly threat to Mr. Harshaw. Witnesses testified Mr. Cunningham made threatening remarks and reached for something in his [sic] car immediately prior to the homicide. Under these circumstances, the jury could have believed that Mr. Harshaw acted recklessly—too hastily and without due care—in concluding that deadly force was necessary to protect himself, and thus it could have found Mr. Harshaw guilty of manslaughter rather than murder in the second degree.
Harshaw, 344 Ark. at 135, 39 S.W.3d at 757.
In both Cobb and Harshaw, we addressed whether the defendants, based on the specific facts of each case, were entitled to a manslaughter instruction. We did not address the issue presented here: whether a justification instruction may be afforded when the charge was manslaughter.[1]
With this history in mind, we turn to our interpretation of the statute at issue. Here, section 5-2-614(a) addresses whether justification as a defense is applicable in specific situations. The plain language provides that when a defendant believes that the use of physical
- ↑ We note that in relying on our footnote in Harshaw, 344 Ark. at 134, n.1 39 S.W.3d at 757 n.1, the State contends that "the appellate courts of Arkansas have held that the defense of justification cannot be successfully interposed in a prosecution for an offense established by proof of reckless or negligent conduct." However, the State misinterprets this language because it omits an integral portion of the statute: "established by proof." The jury must first review the evidence and make a determination. Mo. R.R. Co. v. Ballard, 250 Ark. 1094, 118, 469 S.W.2d 72, 82-83 (1971) ("We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others." (quoting Jones v. East Tennessee, V. & G.R. Co., 128 U.S. 443 [1888]).
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