¶1concurring. I think the majority reached the correct result in this case but they used the wrong law to get there. Their opinion holds that voluntary intoxication is an affirmative defense that must be proved by a preponderance of the evidence rather than merely raising a reasonable doubt. That conclusion is made even though, as I read the opinion, the majority really thinks the conclusion is wrong, and even though Arkansas Model Criminal Instruction 4005.1 agrees that the conclusion is wrong.
¶2Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981), alluded to the fact, 273 Ark. at 258, that the Committee on Criminal Jury Instructions had not yet drafted a model instruction applicable to the defense of voluntary intoxication in the wake of the amendment of Ark. Stat. Ann. § 41-207 (Repl. 1977) by Act 101 of 1977. The committee revised the AMCI book in 1982, see Introduction to 1982 Revisions, and AMCI 4005.1 is the result of that revision. The Arkansas Supreme Court’s Per Curiam of January 29, 1979, provides that the AMCI instructions should be used unless they do not accurately state the law.
¶3I would accept AMCI 4005.1, prepared by the committee appointed by the Arkansas Supreme Court, which includes one of the court’s own members, as a correct instruction of the law — especially when the instruction is so obviously correct and has been for so long. See the dissent in Casat v. State, 40 Ark. 511 (1883), which says:
After all, with due deference to the high courts and eminent jurists who have maintained the doctrine, is there not something absurd and illogical in saying that the jury must not convict any man of whose guilt they have a reasonable doubt, except the doubt be as to whether he was so unfortunate as to be incapable of guilt, but a doubt on that point must not save him.
¶4This case should be affirmed, however, because the court instructed on the lesser included offense of battery in the second degree and the appellant could have been guilty of that crime as a result of reckless conduct. AMCI 4005.1, requested by appellant, would have applied to the second degree battery charge also. Thus, it was not a completely correct instruction and, as the majority holds, there was no reversible error in refusing to give it.
¶5I am authorized to state that Judge Corbin joins in this concurring opinion.