The opinion
Annabelle Clinton Imber, Justice, concurring in part; dissenting cepart. , agree with the majority, except I would affirm on all points. The first-degree battery statute clearly encompasses Mr. Smith’s conduct in striking Mrs. Quandt repeatedly on the head with the butt of his gun.
The relevant portion of the first-degree battery statute provides as follows: “(a) A person commits battery in the first degree if . . . [w]ith the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm.” Ark. Code Ann. § 5-13-201 (a)(7) (Repl. 1997). The second-degree battery statute provides, in relevant part, that “[a] person commits battery in the second degree if . . . [w]ith the purpose ofcausing physical injury to another person, he causes physical injury to any person by means of a deadly weapon other than a firearm . . . .” Ark. Code Ann. § 5-13-202 (a)(2) (Supp. 2001). The Arkansas Criminal Code specifically defines the term “firearm:
“Firearm” means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device;
Ark. Code Ann. § 5-1-102 (6) (Supp. 2001) (emphasis added). Likewise, “deadly weapon” is defined as:
(A) A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury; or
(B) Anything that in the manner of its use or intended use is capable of causing death or serious physical injury
Ark. Code Ann. § 5-1-102 (4) (Supp. 2001). Mr. Smith claims, and the majority agrees, that under the above-cited statutory provisions, he did not commit first-degree battery because he did not cause physical injury by shooting a firearm and, thus, did not cause physical injury by means of a firearm as required by section 5-13-201(a)(7). He concludes by stating that he used a “deadly weapon other than a firearm” and, therefore, was only guilty of second-degree battery.
The General Assembly amended the original criminal code to specify that the use of a firearm in the commission of a battery would be a factor that distinguishes first-degree battery from second-degree battery. See Ark. Stat. Ann. §§ 41-1601, 41-1602 (Repl. 1977). In construing section 5-13-201(a)(7) just as it reads, giving the words their ordinary and usually accepted meaning in common language, it is clear that the statute does not qualify the means by which a firearm is used to cause injury. If the General Assembly had meant to limit the offense to shooting a firearm, it could have said so, as it has in other provisions of the criminal code. See Ark. Code Ann. § 5 — 13—310(a)(1) (Repl. 1997) (“[a] person commits a terroristic act when . . . [h]e shoots at ... an object with the purpose to cause injury.”); Ark. Code Ann. § 5-74-107 (a)(l) (Repl. 1997) (“[a] person commits unlawful discharge of a firearm from a vehicle in the first degree if he knowingly discharges a firearm from a vehicle and thereby causes death or serious physical injury . . . .”). More importantly, the statutory definition of firearm includes guns that are not immediately operable. Ark. Code Ann. § 5-1-102 (6). Thus, because a gun need not be operable to be a firearm, physical injury by means of a firearm is not limited to the shooting of a firearm.
The majority states that we need not consider the statutory definition of firearm, and then proceeds to conclude that the-phrase “by means of a firearm” means the use of a firearm as a firearm. I fail to understand how such a conclusion can be reached without reference to the statutory definition of a firearm, which includes “a device that is not . . . immediately operable . . . .” Ark. Code Ann. § 5-1-102 (6). In other words, the majority’s interpretation of the phrase “by means of a firearm” simply defies common sense. On the one hand, a firearm must be used as a firearm; but, on the other hand, the statutory definition of “firearm” is irrelevant. In short, the majority ignores the statutory definition of “firearm.”
For the above-stated reasons, I must conclude that Mr. Smith’s actions in striking Mrs. Quandt with the butt of a gun constitute first-degree battery within the plain meaning of Ark. Code Ann. § 5-13-201 (a) (7). The trial court did not err in denying Mr. Smith’s motion for directed verdict on the charge of first-degree battery.
Glaze and Thornton, JJ., join.