JURY INSTRUCTION DRAFTS - March 2006
If you have questions or comments, please contact please contact Lynn Kerbeshian at pjic@gra.midco.net or call/fax 701-775-7384.
NDJI Drafts March 2006
Civil
C - 10.10 Watercourse
C - 10.20 Drainway (reviewed with no changes)
C - 16.00 Roadways, Streets, and Sidewalks Duty of State or Political Subdivisions
C - 16.05 Notice to State or Political Subdivision (Roadways, Streets, and Sidewalks)
C - 16.10 Liability of Municipality for Damages Caused by [Snow and Ice] [Frost or Loose
Snow] on [Sidewalk] [Crosswalk]
C - 72.00 Exemplary or Punitive Damages
C - 72.06 Exemplary Damages (Principal/Agent)
C - 85.70 Duty of the Jury/Deadlocked Jury [Allen Charge]
C - 85.75 Assisting Jurors at Impasse
Criminal
K - 3.85 Legal [Possession] [Consumption] of a Controlled Substance
K - 5.62 Duty of the Jury/Deadlocked Jury [Allen Charge]
K - 5.64 Assisting Jurors at Impasse
K - 6.01 Murder (Intentionally or Knowingly)
K - 6.02 Murder (Extreme Indifference to Human Life)
K - 6.03 Murder (While Committing Crime)
K - 6.10 Affirmative Defenses to Murder (Multiple Participants) (reviewed with no
changes)
K - 6.15 Murder - Class A Felony (Extreme Emotional Disturbance)
K - 6.16 Extreme Emotional Disturbance (reviewed with no changes)
K - 6.20 Manslaughter (Reckless Conduct)
K - 6.30 Negligent Homicide (Negligently Causes Death)
K - 22.36 Ingesting a Controlled Substance
2006
Watercourse
A watercourse exists if there is a sufficient natural and accustomed flow of water to form and maintain a distinct and defined channel. The supply of water need not be continuous or from a perennial living source. It is enough if the flow arises periodically from natural causes and reaches a plainly defined channel of permanent character.
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NDCC 61-01-06
State v. Brace, 36 NW2d 330 (ND 1949)
Froemke v. Parker, 171 NW 284 (ND 1919)
1986
(2006 - reviewed with no changes)
Drainway
A draw or drainway that is simply a natural depression for the drainage of surface waters running from winter snows or spring rains or other rains upon tributary lands and which serves that purpose occasionally and temporarily and which does not possess the characteristics of a definite bed or channel or of a permanent source of water supply, either continuous or periodic, and which is otherwise used or is capable of use for agricultural purposes, is not a watercourse.
If, however, a waterway has all of the essential characteristics of a watercourse as defined in these instructions, it may still be a watercourse, notwithstanding cultivation, if cultivation is carried on contrary to practices of good husbandry.
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Froemke v. Parker, 171 NW 284 (ND 1918)
2006
Roadways, Streets, and Sidewalks Duty of State of Political Subdivisions
[The State] [A political subdivision] has the power, granted to it by law, to lay out, establish,
open, alter, repair, clean, pave, or otherwise improve and regulate the use of roadways,
streets, and sidewalks and to regulate their use for public travel within the [State] [political
subdivision].
In exercising this power [the State] [a political subdivision] must use reasonable care to maintain the [roadways] [streets] [sidewalks] in a reasonably safe condition for use by the public and must guard against unreasonably dangerous conditions which can be foreseen in the exercise of reasonable prudence and care. The [State] [political subdivision] is held to the same standard of care expected of private persons in the conduct of their business involving a like danger to others. This means that the [roadway] [street] [sidewalk] must be maintained in reasonably safe condition in view of all the circumstances, including the likelihood of injury, the seriousness of the injury, and the burden of avoiding the risk.
NDCC 32-12.1-03(1)
NDCC 32-12.2-02(1)
Fast v. State of ND, 2004 ND 111, ¶ 8, 680 NW2d 265, 268.
Boudreau v. Estate of Miller, 2000 ND 30, ¶ 7, 606 NW2d 514, 517-18 (case involving a county)
Diegel v. City of West Fargo, 546 NW2d 367, 370 (ND 1996)
DeLair v. County of LaMoure, 328 NW2d 55, 62 (ND 1982)
Belt v. City of Grand Forks, 68 NW2d 114, 119-20 (ND 1955)
Maloney v. City of Grand Forks, 15 NW2d 769, 773 (ND 1944)
NOTE: See Clark v. Stoudt, 12 NW2d 708 (ND 1944) for fault of occupant of abutting property. For cases involving accumulation of ice and snow, see C - 16.10 (municipalities) and C - 16.11 (State and other political subdivisions).
2006
Notice to State or Political Subdivision
(Roadways, Streets, and Sidewalks)
Before [the State] [a political subdivision] may be found at fault, the Plaintiff must prove that the [State] [political subdivision] knew or should have known of the defective and unsafe condition of the [roadway] [sidewalk] [street] in question. The notice can be either express or constructive.
Express notice is notice actually communicated to the [State] [political subdivision] through
its duly constituted officials.
Constructive notice is notice that the [State] [political subdivision] is deemed to have from the circumstances of the case. [The State] [A political subdivision] has constructive notice of such defective and unsafe condition of its [roadway] [sidewalks] [street] as it would have discovered by the exercise of ordinary care and diligence. The [State] [political subdivision] must maintain an active vigilance over its roadways, streets, and sidewalks to see that they are kept in a reasonably safe condition for public travel. The circumstances of each case determine whether the [State] [political subdivision] had constructive notice.
Whether the [State] [political subdivision] in this case had express or constructive notice of the alleged defective and unsafe condition of the [roadway] [sidewalk] [street] is a question of fact for you to decide in determining the issue of the fault of the [State] [political subdivision].
Skjervem v. Minot State University, 2003 ND 52, 658 NW2d 750 (discussion of notice)
Dahl v. Nelson, 56 NW2d 757, 759-60 (ND 1953)
Maloney v. City of Grand Forks, 15 NW2d 769 (ND 1944)
NOTE: For cases of ice and snow, see C - 16.10 and C - 16.11.
2006
Liability of Municipality for Damages Caused by [Snow and Ice]
[Frost or Loose Snow] on [Sidewalk] [Crosswalk]
A municipality is not at fault for damages or injuries suffered or sustained by reason of
accumulation of snow and ice upon a [sidewalk] [crosswalk] within the municipality unless
the executive officer, the governing body [city council] [city commission], [or] a police officer
of the municipality had actual knowledge of the defective, unsafe, or dangerous condition
of the [sidewalk] [crosswalk] at least forty-eight (48) hours prior to the damage or injury.
Actual knowledge of the defective condition is not presumed and may not be inferred from
the fact that the condition existed. It must be proved as an independent fact.
However, if the municipality had actual knowledge of the existence of the condition, you are
free to decide whether snow and ice were present at the time of the mishap in such form
as to be a proximate cause of the Plaintiff's injuries.
[A municipality is not at fault for damages or injuries occasioned through the mere slippery
condition of the [sidewalk] [crosswalk] due to the presence of frost or loose snow.]
NDCC 40-42-05 (statute specific to municipalities only)
Haugen v. City of Grand Forks, 187 NW2d 68 (ND 1971)
NOTE: For situations involving snow and ice on stairways and sidewalks abutting government owned buildings, see Makeeff v. City of Bismarck, 2005 ND 60, 693 NW2d 639. For situations involving snow and ice on property owned by the State or other political subdivisions, see C - 16.11.
2006
If you find by clear and convincing evidence that the Defendant acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions, then you may, in your discretion, award a reasonable sum as exemplary or punitive damages. These damages are different from the damages awarded to compensate for an injury or loss. These damages permit you to make an example to others or to punish a wrongdoer.
If you decide to use your discretion to award a reasonable sum as exemplary or punitive damages, then you must also find by clear and convincing evidence that:
1) the amount awarded bears a reasonable relationship to any harm that is likely to result from the Defendant's conduct and any harm that actually has occurred; and
2) the amount awarded is consistent with the degree of reprehensibility of the Defendant's conduct and its duration.
[Further, in considering an award of exemplary or punitive damages, you must also consider:
1) the extent to which the Defendant was aware of the conduct or concealed it;
2) the extent to which the Defendant profited from the conduct and whether or not it would be desirable to remove that profit or have the Defendant also sustain a loss;
3) the extent to which the Defendant has already been punished for the same conduct by criminal sanctions.]
* * * * *
NDCC 32-03.2-11(5)
Ehrman v. Feist, 1997 ND 180, 568 NW2d 747
Continental Casualty Co. v. Kinsey, 499 NW2d 574 (ND 1993)
Stoner v. Nash Finch, Inc., 446 NW2d 747 (ND 1989)
Napoleon Livestock Auction, Inc. v. Rohrich, 406 NW2d 346 (ND 1987)
NOTE: The Court should instruct the Jury with the bracketed language as warranted by the evidence. A specific finding is required.
See also: NDJI C - 72.02, Exemplary Damages - Compensatory Damages Required; NDJI C - 72.04, Exemplary Damages (Products Liability); NDJI C - 72.10, Oppression; NDJI C - 72.12, Fraud as a Basis for Exemplary Damages; and NDJI C - 72.16, Actual Malice.
For a discussion of due process concerns relating to consideration of out-of-state and dissimilar acts evidence, and amount of exemplary damages, see State Farm Mutual Ins. Co. v. Campbell, 538 US 408, 421-25, 123 SCt 1513, 1522-24 (2003).
2006
Exemplary Damages
(Principal/Agent)
Alternative A (Authorization, Approval, or Ratification)
You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements:
1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions; and
2) The principal [A managerial agent of the principal] authorized, approved, or ratified the doing and manner of the act.
Alternative B (Reckless Employment or Retention)
You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements:
1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions;
2) The agent was unfit; and
3) The principal [managerial agent of the principal] was reckless in employing or retaining the agent.
Alternative C (Managerial Capacity)
You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements:
1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions;
2) The agent was employed in a managerial capacity; and
3) The agent was acting in the scope of employment.
CONTINUED TEXT
Exemplary or punitive damages are different from the damages awarded to compensate for an injury or loss. These damages permit you to make an example to others or to punish a wrongdoer. If you decide to use your discretion to award a reasonable sum as exemplary or punitive damages, then you must also find by clear and convincing evidence that:
1) the amount awarded bears a reasonable relationship to any harm that is likely to result from the conduct and any harm that actually has occurred; and
2) the amount awarded is consistent with the degree of reprehensibility of the conduct and its duration.
[Further, in considering an award of exemplary or punitive damages, you must also consider:
1) the extent to which the Defendant was aware of the conduct or concealed it;
2) the extent to which the Defendant profited from the conduct and whether or not it would be desirable to remove that profit or have the Defendant also sustain a loss;
3) the extent to which the Defendant has already been punished for the same conduct by criminal sanctions.]
* * * * *
NDCC 32-03.2-11(5), 32-03.2-11(8)
NOTE: The most appropriate alternative from those listed should be selected based on the facts of the case. In appropriate cases the terms "principal" and "agent" may be replaced with "employer," "employee," or the names of the parties. The Court should instruct the Jury with the bracketed language as warranted by the evidence. A specific finding is required.
2006
Duty of the Jury/Deadlocked Jury [Allen Charge]
MEMBERS OF THE JURY:
The verdict you reach must be unanimous. In coming to this agreement, you have a duty to consult with one another and to deliberate with a view to reaching an agreement, but only if it can be done without doing violence to your individual judgment. You must each come to your own conclusion as to what the weight of the evidence shows, but this conclusion should be based on an impartial consideration of the evidence with your fellow jurors. Do not hesitate to re-examine your own views and change an earlier opinion if convinced that your earlier opinion was erroneous.
It is important that none of you surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
In light of the foregoing, I shall ask you to retire to deliberate [further] and make a conscientious effort to reach a verdict.
* * * * *
State v. Champagne, 198 NW2d 218, 238 (ND 1972)
Benzmiller v. Swanson, 117 NW2d 281 (ND 1962)
Borstad v. LaRoque, 98 NW2d 16 (ND 1959)
Lathrop v. Fargo Moorhead St. Ry. Co., 136 NW 88 (ND 1912)
Allen v. United States, 164 US 492 (1896)
NOTE: This instruction or its equivalent found in instruction NDJI Civil 85.20 should be given as part of the original series, and may be given again, after reasonable deliberation if the Jury reports an inability to agree or fails to return a verdict.
If giving this instruction, the following procedure should be observed:
1) Before the trial judge attempts to ascertain whether the Jury is deadlocked, both counsel should be present along with the reporter. At that time, the Court, on the record, should state the facts concerning any communication from the Jury, or if there has been no communication, the length of time the Jury has been deliberating, and inform counsel that the Court proposes to give the instruction again, giving counsel an opportunity to object, if they so desire.
2) In the presence of both counsel and the reporter, the Jury should be returned to the box, and the Court, after cautioning them not to reveal the numerical division in the voting or which side has the preponderance, should ask the jury leader if they are unable to reach a verdict. If the Jury is at an impasse, the Court may give this instruction and return them to the jury room to deliberate further.
2006
Assisting Jurors at Impasse
MEMBERS OF THE JURY:
This instruction is offered to help your deliberations, not to force you to reach a verdict.
You may wish to identify areas of agreement and areas of disagreement. You may then wish to discuss the law and the evidence as they relate to areas of disagreement.
If you still have disagreement, you may wish to identify for the Court and counsel which issues or questions of law or fact you would like counsel or the Court to assist you with. If you elect this option, please list in writing the issues where further assistance might help bring about a verdict.
I do not wish or intend to force a verdict. We are merely trying to be responsive to your apparent need for help. If it is reasonably probable that you could reach a verdict as a result of this procedure, it would be wise to give it a try.
In light of the foregoing, I shall ask you to retire to deliberate further and make a conscientious effort to reach a verdict.
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NDROC 1.1, 6.9
State v. Shafer-Imhoff, 632 NW2d 825 (ND 2001)
State v. Champagne, 198 NW2d 218, 238 (ND 1972)
Benzmiller v. Swanson, 117 NW2d 281 (ND 1962)
Borstad v. LaRoque, 98 NW2d 16 (ND 1959)
Lathrop v. Fargo Moorhead St. Ry. Co., 136 NW 88 (ND 1912)
NOTE: This instruction should not be given as part of the original series, but only if, after reasonable deliberation, the Jury reports an inability to agree or fails to return a verdict. In addition, it should be noted that providing assistance under Rule 6.9 is completely within the court's discretion, both in the decision to provide the assistance and the manner in which assistance is provided.
If giving this instruction, the following procedure should be observed:
1) Before the trial judge attempts to ascertain whether the Jury is deadlocked, both counsel should be present along with the reporter. At that time, the Court, on the record, should state the facts concerning any communication from the Jury, or if there has been no communication, the length of time the Jury has been deliberating, and inform counsel that the Court proposes to give the instruction, giving counsel an opportunity to object, if they so desire.
2) In the presence of both counsel and the reporter, the Jury should be returned to the box, and the Court, after cautioning them not to reveal the numerical division in the voting or which side has the preponderance, should ask the jury leader if they are unable to reach a verdict. If the Jury is at an impasse, the Court may give this instruction and return them to the jury room to deliberate further.
2006
It is a defense to [the criminal charge] if a person [possesses] [ingests] [inhales] [otherwise takes into [his] [her] body] a controlled substance when the controlled substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice or except as otherwise authorized by law.
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2006
Duty of the Jury/Deadlocked Jury [Allen Charge]
MEMBERS OF THE JURY:
The verdict you reach must be unanimous. In coming to this agreement, you have a duty to consult with one another and to deliberate with a view to reaching an agreement, but only if it can be done without doing violence to your individual judgment. You must each come to your own conclusion as to what the weight of the evidence shows, but this conclusion should be based on an impartial consideration of the evidence with your fellow jurors. Do not hesitate to re-examine your own views and change an earlier opinion if convinced that your earlier opinion was erroneous.
It is important that none of you surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
In light of the foregoing, I shall ask you to retire to deliberate [further] and make a conscientious effort to reach a verdict.
* * * * *
State v. Champagne, 198 N.W.2d 218, 238 (ND 1972)
Benzmiller v. Swanson, 117 N.W.2d 281 (ND 1962)
Borstad v. LaRoque, 98 N.W.2d 16 (ND 1959)
Lathrop v. Fargo Moorhead St. Ry. Co., 136 NW 88 (ND 1912)
Allen v. United States, 164 US 492 (1896)
NOTE: This instruction or its equivalent found in instruction NDJI Civil 85.20 should be given as part of the original series, and may be given again, after reasonable deliberation if the Jury reports an inability to agree or fails to return a verdict.
If giving this instruction, the following procedure should be observed:
1) Before the trial judge attempts to ascertain whether the Jury is deadlocked, both counsel should be present along with the reporter. At that time, the Court, on the record, should state the facts concerning any communication from the Jury, or if there has been no communication, the length of time the Jury has been deliberating, and inform counsel that the Court proposes to give the instruction again, giving counsel an opportunity to object, if they so desire.
2) In the presence of both counsel and the reporter, the Jury should be returned to the box, and the Court, after cautioning them not to reveal the numerical division in the voting or which side has the preponderance, should ask the jury leader if they are unable to reach a verdict. If the Jury is at an impasse, the Court may give this instruction and return them to the jury room to deliberate further.
2006
A person who intentionally or knowingly causes the death of another human being is guilty of murder.
The State's burden of proof is satisfied if the evidence shows beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, caused the death of _______________, a human being; and
2) The Defendant intentionally or knowingly caused the death of .
[3) The Defendant did not act in self-defense.]
[Insert relevant definitions. NDCC 12.1-02-02.]
NDCC 12.1-16-01(1)
See also NDCC Ch. 12.1-05 (defenses and accompanying jury instructions)
State v. Olander, 1998 ND 50 ¶¶ 20,23, 575 NW2d 658
State v. Skjonsby, 319 NW 2d 764, 772-73 (ND 1982)
See also NDCC Ch. 12.1-05 (defenses and accompanying jury instructions)
NOTE: If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
2006
A person is guilty of murder if the person willfully causes the death of another human being under circumstances manifesting extreme indifference to the value of human life.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully caused the death of _______________, a human being; and
2) The death of _______________ was caused under circumstances manifesting extreme indifference to human life[.] [;and]
[3) The Defendant did not act in self-defense.]
[Insert relevant definitions. NDCC 12.1-02-02.]
NDCC 12.1-16-01(2)
State v. Olander, 1998 ND 50 ¶¶ 20,23, 575 NW2d 658
State v. Halvorson, 346 NW2d 704 (ND 1984)
NOTE: If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
2006 NDJI-CRIMINAL K - 6.03
Murder
(While Committing Crime)
A person is guilty of Murder if that person, acting either alone or with one or more persons, willfully commits or attempts to commit [Treason] [Robbery] [Burglary] [Kidnapping] [Felonious Restraint] [ Arson] [Gross Sexual Imposition] [Escape] [the felony offense of _______________ against a child], and in the course of and in furtherance of that crime or of immediate flight from it, the person or another participant willfully causes the death of any person.
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, caused the death of _______________, a human being; and
2) The Defendant, acting either alone or with one or more persons willfully committed or attempted to commit [Treason] [Robbery] [Burglary] [Kidnapping] [Felonious Restraint] [Arson] [Gross Sexual Imposition] [Escape] [the felony offense of _______________ against a child], and in the course of and in furtherance of that crime or of immediate flight from it, the Defendant or another participant, willfully caused the death of _______________[.] [;and]
[3) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02.]
* * * * *
NDCC 12.1-16-01(1)
State v. Olander, 1998 ND 50, ¶¶ 20, 23, 575 NW2d 658
NOTE: If the charge alleges a felony offense against a child, insert the applicable allegation from NDCC 12.1-20-03, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 14-09-22.
If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
1985
(2006 - reviewed with no changes)
In a prosecution for Murder while committing a crime in which the Defendant was not the only participant in the underlying crime, it is an affirmative defense that the Defendant:
1) did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
2) was not armed with a firearm, destructive device, dangerous weapon, or other weapon which under the circumstances indicated a readiness to inflict serious bodily injury;
3) reasonably believed that no other participant was armed with such a weapon; and
4) reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
[Insert relevant definitions. NDCC 12.1-01-04.]
NDCC 12.1-16-01, 12.1-01-03(3)
NOTE: Follow this instruction with NDJI K - 4.30, Affirmative Defense - Burden of Proof.
2006
[If you find the Defendant not guilty of Murder, [a class AA felony,] then you must consider whether the Defendant is guilty of Murder, a class A felony, an offense necessarily included in the offense charged.]
A person is guilty of Murder, a class A felony, if the person intentionally or knowingly causes the death of another human being under circumstances which would be murder, except for the fact that the person acted under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse is determined from the viewpoint of a person in that situation under the circumstances as the person believes them to be. An extreme emotional disturbance is excusable if it is occasioned by substantial provocation, serious event, or a situation for which the offender was not culpably responsible.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, intentionally or knowingly caused the death of _______________, a human being; and
2) The death was caused by the Defendant under circumstances that would sustain a finding of guilty of the crime of Murder, a class AA felony, except for the fact that the Defendant acted under the influence of extreme emotional disturbance for which there was reasonable excuse[.] [;and]
[3) The Defendant did not act in self-defense.]
[Insert relevant definitions. NDCC 12.1-01-04; 12.1-02-02.]
NDCC 12.1-16-01(2)
State v. Olander, 1998 ND 50, ¶¶ 20, 23, 575 NW2d 658
State v. Trieb, 315 NW2d 649, 659 (ND 1982)
NOTE: See NDJI K - 6.16 for definition of "extreme emotional disturbance."
The bracketed paragraph should be omitted if the Defendant is not charged with Murder, a class AA felony, in which case the definition of Murder, a class AA felony, must also be stated.State v. Halvorson, 346, NW2d 704 (ND 1984); State v. Dilger, 338 NW2d 87 (ND 1983)
If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
1985
(2006 - reviewed with no changes)
"Extreme emotional disturbance" means the emotional state of an individual who 1) has no mental disease or defect that affects accountability; 2) is exposed to an extremely unusual and overwhelming stress; and 3) has an extreme emotional reaction to it, as a result of which there is a loss of self control, and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions.
State v. Trieb, 315 NW2d 649, 659 (ND 1982)
People v. Shelton, 385 NYS2d 708, 717-718 ( 1976)
State v. Elliott, 411 A2d 3, 8 (1979)
Vol. II, Working Papers of the National Committee on Reform of Federal Criminal Laws, Comment on Homicide, at 829
2006
[If you find the Defendant not guilty of the crime of Murder, then you must consider whether the Defendant is guilty of the crime of Manslaughter, an offense necessarily included in the offense charged.]
A person who recklessly causes the death of another human being is guilty of Manslaughter.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, caused the death of _______________, a human being;
2) The death was caused recklessly by the Defendant[.] [;and]
[3) The Defendant did not act in self-defense.]
A person engages in conduct "recklessly" if the person engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct. Awareness of the risk is not required where its absence is due to self-induced intoxication.
NDCC 12.1-16-01, 12.1-02-02(1)(c), 12.1-01-04(15)
State v. Olander, 1998 ND 50, ¶¶ 20, 23, 575 NW2d 658
State v. Leidholm, 334 NW2d 811, 816, 821 (ND 1983)
State v. Trieb, 315 NW2d 649, 657 (ND 1982)
State v. Granrud, 301 NW2d 398, 403 (ND 1981)
NOTE: The first bracketed paragraph should be omitted if the Defendant is not charged with murder. If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
2006
[If you find the Defendant not guilty of the crime of Manslaughter, then you must consider whether the Defendant is guilty of the crime of Negligent Homicide, an offense that is necessarily included in the offense charged.]
A person who negligently causes the death of another human being is guilty of "Negligent Homicide."
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, caused the death of _______________, a human being;
2) The Defendant engaged in the conduct, which caused the death of said _______________ in unreasonable disregard of the substantial likelihood of the existence of relevant facts or risks, a disregard involving a gross deviation from acceptable standards of conduct[.] [;and]
[3) The Defendant did not act in self-defense.]
A person engages in conduct "negligently" if the person engages in the conduct in unreasonable disregard of a substantial likelihood of the existence of relevant facts or risks, a disregard involving a gross deviation from acceptable standards of conduct.
NDCC 12.1-16-03, 12.1-02-02(1)(d)
See also Ch. 12.1-05 (defenses and accompanying jury instructions)
State v. Olander, 1998 ND 50, ¶¶ 20, 23, 575 NW2d 658
State v. Leidholm, 334 NW2d 811, 821 (ND 1983)
State v. Schlickenmayer, 334 NW2d 195, 198 (ND 1983)
State v. Skjonsby, 319 NW2d 764, 777 (ND 1982)
NOTE: Negligent Homicide is not limited to motor vehicle homicides; it covers any homicide caused "negligently."
The bracketed language of the first paragraph should be omitted if the Defendant is not charged with Manslaughter. If there is no evidence supporting a claim of self-defense, do not use bracketed element number 3.
2006
Unless a person has a valid prescription, it is illegal to intentionally ingest a controlled substance.
ESSENTIAL ELEMENTS OF THE OFFENSE
1) On or about [month] [day] [year] in [County], North Dakota, the Defendant ____________;
2) Intentionally [ingested][inhaled][took into [his][her] body] a controlled substance.
DEFINITIONS
A person engages in conduct "intentionally" if, when [he][she] engages in the conduct, it is [his][her] purpose to do so.
* * * * *
NDCC 19-03.1-22.3