JURY INSTRUCTION DRAFTS - October 2001
If you have questions or comments, please contact Lynn Kerbeshian at NDPJI@yahoo.com or call/fax 701-775-6220.
Evidence has been presented that the Defendant [state the defense]. The State must prove beyond a reasonable doubt, as an additional element of the offense charged, that the Defendant was not [state the defense]. The Defendant does not have the burden of proof as to this defense. If the State has failed to prove beyond a reasonable doubt that the Defendant did not [state the defense], the Defendant is entitled to a verdict of not guilty.
NDCC 12.1-01-03(1) - (2)
State v. Olander, 1998 ND 50, 575 NW2d 658
State v. Thiel, 411 NW2d 66 (ND 1987)
NOTE: This instruction should follow immediately after the Court's instructions setting forth the elements of the offense to which the defense applies. For affirmative defenses, see NDJI K - 4.00.
Proof of a motive for commission of a crime is permissible and often valuable, but never essential. If, after a consideration and comparison of all the evidence, you have a firm and abiding conviction that the Defendant committed the crime charged, the motive for its commission becomes unimportant. Evidence of motive is sometimes of assistance in removing doubt and completing proof that otherwise might be unsatisfactory. Motive may be shown by direct evidence or by facts supporting a reasonable inference. If thus proved, motive becomes nothing more than a circumstance to be considered by you. The absence of motive is a circumstance tending to support the presumption of innocence and should be given such weight and credibility as you think it deserves.
State v. Potter, 233 NW 650 (ND 1930)
State v. Mozinski, 191 NW 345 (ND 1922)
23A CJS, Criminal Law, § 1198
A person who willfully uses, or willfully possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance, in violation of NDCC Chapter 19-03.1, is guilty of Unlawful Possession of Drug Paraphernalia.
The use of, or possession with intent to use, , is prohibited by NDCC Chapter 19-03.1, unless used or possessed pursuant to an authorized prescription.
In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]
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,_______________;
2) Willfully [used] [possessed with intent to use] _______________, for the purpose of [planting] [propagating] [cultivating] [growing] [analyzing] [packaging] [repackaging] [storing] [containing] [concealing] [injecting] [ingesting] [inhaling] [otherwise introducing into the human body], _______________, in violation of Chapter 19-03.1.
[Insert relevant definitions. NDCC 12.1-02-02, 19-03.1-01, 19-03.4-01.]
NDCC 19-03.1, 19-03.4-03
NOTE: This instruction when given should indicate what the object is and whether the object meets the definitions in NDCC 19-03.4-02.
If a married [person] is injured as a proximate result of the wrongful conduct of another, [that person] is entitled to recover damages against the wrongdoer for personal injuries and [the spouse] is entitled to recover damages for any interference with marital rights, deprivation of services, society, and companionship, including any impairment of the capacity for sexual intercourse [and for the reasonable expenses incurred for medical treatment and care].
The damages sustained by the [spouse] for the loss of consortium include not only the value in money for the deprivation of services, but also such reasonable amount of money as the Jury, in the exercise of its discretion, may reasonably allow as just compensation for the loss of society and companionship, including the impairment of the capacity for sexual intercourse.
In this regard, the Jury may consider the nature of the marital relationship of the husband and wife, their station in life, their disposition, temperament, and affection toward one another, their interests in life, their attainments, their character, their dependency upon one another, and all other circumstances bearing upon their personal relationship.
NDCC 9-10-01, 9-10-06; 14-02-01
Wald v. City of Grafton, 442 NW2d 910 (ND 1989)
Milde v. Leigh, 28 NW2d 530 (ND 1947), 173 ALR 738
Cf. Hastings v. James River Aerie No. 2337 - Fraternal Order of Eagles, 246 NW2d 747 (ND 1976)
"Negligence" is the lack of ordinary care and diligence required by the circumstances. Ordinary care or diligence means such care as a person of ordinary prudence usually exercises about one's own affairs of ordinary importance.
Negligence involves a lack of such concern for the probable consequences of an act or failure to act as a person of ordinary prudence would have had in conducting one's own affairs. It is the lack of such care as persons of common sense and ordinary prudence usually exercise under the same or similar circumstances. Negligence is a relative term. Whether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case.
The duty to use care is based upon knowledge of danger. The care that a person must exercise in a particular situation is in proportion to the degree of danger of injury to oneself or to others in the act to be performed. The care necessary to constitute the ordinary care required by a person upon any particular occasion is measured by reference to the circumstances of danger known to one at the time or which the person should reasonably have foreseen. The greater the danger, the greater is the care required.
A person is presumed to have performed one's duty and to have exercised ordinary care, unless the contrary is shown by the greater weight of the evidence. The mere fact that a mishap occurred, considered alone, is not in itself evidence of negligence on the part of any of the people involved. You have no right to assume that the mishap was caused by negligence or other wrongful conduct of anyone.
[If the standard of care required in any given situation is prescribed by the laws of this state, a failure to observe that standard is evidence of negligence.]
Chicago, M., St. P. & P.R. Co. v. Johnston Fuel Liners, 122 NW2d 140 (ND 1973)
Saetz v. Braun, 116 NW2d 628 (ND 1962)
See also NDJI C - 2.10, Gross Negligence Defined
If you find that the Plaintiff voluntarily proceeded into a dangerous situation of which the Plaintiff had previous knowledge, but had momentarily forgotten the danger, such forgetfulness does not in itself constitute fault unless under all the circumstances it shows a want of ordinary care not to have kept the danger in mind.
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Keller v. Vermeer Mfg. Co., 360 NW2d 502 (ND 1984)
NOTE: This instruction should be used with Assumption of Risk, C - 2.75.