#### 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.

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 *440jury. 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.