No. 92-099 . 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

f 992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-v5- 

DONALD GINGRAS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Lei£ B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Vernay, Attorney at Law, Kalispell, Montana 

For Respondent: 

Kon. Marc Racicot, Attorney General, Helena, Montana 

Kathy Seeley, Assistant Attorney General, Helena, 

Montana 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Ed Corrigan, Deputy County Attorney, Kalispell, 

Montana 11. , 

-C. 

Submitted on Briefs: May 28, 1992 

AN 3 0 199 Decided: June 30, 1992 
Justice Fred J. Weber delivered the Opinion of the Court. 

A jury in the Eleventh Judicial District Court, Flathead 

County, found the defendant Donald Gingras, guilty of attempted 

deliberate homicide, a felony. The defendant appeals. We affirm. 

The sole issue presented for appeal is whether the District 

Court erred in instructing the jury not to consider the issue of 

self defense until after it found the elements of deliberate 

homicide. 

The defendant was charged with attempted deliberate homicide 

in connection with the stabbing of Forest Love during a fracas at 

the Stockman's Bar in Kalispell, Montana. The defendant raisedthe 

defense of justifiable use of force. 

The District Court's instruction number 16 on justifiable use 

of force was presented to the jury as follows: 

The defendant has pleaded justification in the use 

of force in this case. As such he has the burden of 

producing sufficient evidence of justification in the use 

of force to raise a reasonable doubt of his guilt. You 

are to consider the fallowing requirement of the law in 

determining whether the use of force claimed by the 

defendant was justified. 

1) Defendant must not be the aggressor; 

2) The danger of harm to the defendant must be a 

present one, not merely threatened at a future 

time, or without the present ability of carrying 

out a threat; 

3) The force threatened against the defendant must 

be unlawful; 

4) The defendant must actually believe that the 

danger exists, that is, use of force by him is 

necessary to avert the danger and that the kind and 

amount of force which defendant uses is necessary; 

5) Defendant's belief, in each of the aspects 

described, is reasonable even if it is mistaken. 

You are further advised that even if you determine 

the use of force by the defendant was not justified, the 
state still has the duty to prove each of the elements of 

the crime charged beyond a reasonable doubt. 

During deliberations, the jury requested clarification on the 

burden of proof required by each party. The jury's question and 

the court's response are set out below. 

The jury aske8: 

To convict the defendant of attempted deliberate 

homicide does the defendant need to prove it was 

self defense or do we need only to consider if the 

State proved beyond a reasonable doubt that the 

purpose of the act was attempted deliberate homicide? 

The District Court responded: 

The burden of proof is on the State to prove the 

elements of the crime of attempted deliberate 

homicide. If you find that the State has met this 

burden, then you should consider the defense raised 

by the defendant of justifiable use of force, as 

set forth in instruction #16. 

The defendant contends this is an improper instruction. We 

disagree. This is an accurate statement of Montana law regarding 

the affirmative defense of justifiable use of force. State v. 

Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173, 181. 

We hold the District Court properly instructed the jury. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. / 

We Concur: 

June 30, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

DON VERNAY 

Attorney at Law 

343 First Ave. West 

Kalispell, MT 59901 

HON. MARC RACICOT, Attorney General 

, Assistant 

Justice Bldg. 

Helena, MT 569620 

TED 0. LYMPUS, County Attorney 

Ed Corrigan, Deputy 

P.O. Box 1516 

Kalispell, MT 59903-1516 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA