### NO. 80-59 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA,Plaintiff and Respondent,

-vsCHARLES HENRY GRAVES, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, In and For the County of Lewis & 

### Clark, Honorable Gordon R. 

### Bennett, Judge presiding.

Counsel of Record: ForAppellant: Jeffrey Sherlock argued, Helena, Montana W. William Leaphart argued, Helena, Montana

For Respondent: 

### Hon. Mike Greely,Attorney General, Helena,Montana Charles Graveley argued, County Attorney, Helena, Montana

submitted: 

### JUN

## 16 198D Decided: q 

### qg81

Filed:

# alN

..- 

# -7 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant Charles Henry Graves was charged by information with deliberatehomicide and aggravated assault. He 

### was convicted of mitigated deliberate homicide inthe Lewis and Clark County District Court and sentenced 

### to twenty years inthe Montana StatePrison with ten years supended. Defendant Charles Graves, a 20-year old blackman with an eleventh grade education, spent most of April 17, 1979, drinking beer with friends inHelena, Montana. That evening defendant and several friendswent to "Club 21" where he had several 

### more drinks. There he 

### met 

### a woman from Idaho who told him that she



### was going 

### to "Mister Lucky's." After she had left, Charles Graves obtained a ride 

### to Mister Lucky's at approximately 1:00



### a.m. on April 18, 1979. The defendant approached the Idaho woman, 

### sat down next toher ather table and began talking with her. The woman told him that she did not wish to be with him. Graves leftthe table and 

### sat 

### atthe bar and the woman from Idaho joined CraigMarlow, the decedent, at another table. A shortwhile 

### later the defendant approached 

### Marlow's table 

### to ask the Idaho woman 

### to dance. Before defendant could ask her todance, CraigMarlow jumped up and told the defendant to stophassling the woman. The Idaho woman then told defendant that she did not want to dance and he returned 

### to his 

### seat 

### at the bar. After contemplating

### Marlow's actions, Graves returned to the table to inquire as 

### to why 

### Marlow 

### was 

### so belligerent. Marlow allegedlyjumped up and made some comments about black men thinking they could get all the women and said therewasn't enough 

### room inHelena forblacks. Atthispoint defendant said, "Come outside, and I'll bust your jaw." The bartender came over and told them 

### to "Cool it

# ." Graves then began walking away when

someone yelled "Take it outside.It The defendant looked back, and 

### Marlow allegedly said, "Hey Mother I?---- 

### r come outside."Defendant then followed Marlow outside. Two white men,

one of whom had been sittingwith CraigMarlow earlier, allegedly followed Graves outside. When Marlow reached the bottom of the 

### stairs, and while defendant 

### was still on the steps, he turned and hitdefendant 

### twice on the head. Charles Graves then stabbed Craig

### Marlow twice with a knife, once in the abdomen and once in the chest. Graves testified thathe 

### was "kind of drunk" 

### as opposed 

### to "real drunk," thathe 

### was afraid 

### all threewhite men 

### were going tojump him and thathe had stabbed the defendant before he knew what had happened. After the stabbing the defendant attempted 

### to assist others in loading

### Marlow into 

### a vehicle 

### to be transported to the hospital. One witness testified that the defendant appeared 

### to be ina 

### state of shock, while others testified thathe 

### was very 

### calm and completely incontrol of himself. Graves went into Mister Lucky's to gethisjacket and then began walking down Airport Road toward Helena. He

### was stopped by 

### twopolice officers who 

### were responding 

### to 

### a call from Pete Hartman, an airport security guard. Hartman told the police that a stabbing had occurred 

### atMister Lucky's saloon and thathe 

### was following the black suspect down Airport Road. Officer Sturmproceeded to intercept the suspect and 

### saw the defendant walking near the StatePublishing Building. Sturm pulled his vehicle up in front of the defendant. OfficerMelton and Pete Hartman pulled their vehicles up behind the defendant. Both police officerswere uniformed, armed and driving marked police cars. Hartman was also armed and wearing a security guard uniform. OfficerMelton called out to the defendant to "hold it," and OfficerSturm approached the defendant. Sturm asked defendant if he had been involved inan altercation 

### atMister Lucky's. Graves responded thathe had. When asked if a knife



### was involved, Graves said "yes" and turned the knife over 

### to thepolice. Atthispoint the officernoticed blood on defendant's hands and placed him under arrest and gave him hisMiranda warnings. En route 

### to the police station, the defendant made several remarks concerning his involvement in the incident. Hewas booked into the city jail. The same morning atapproximately 4:25 a.m., the defendant signed a written confession atthe county jail afteronce again being informed of his rights and aftersigning a statement that he knew and understood his rights. A urine sample was also taken atthis 

### time. A suppressionhearing was held on August 30, 1979. The defendant sought to supress his oral confession in the police car, hiswritten confession taken atthe county jail, the knife used, and the urine sample. The defendant did not take the stand inthe suppression hearing, but he did submit an affidavit. The court initiallyrefused 

### to accept the a f fidavit; however, atthe urging of defense counsel, the court agreed 

### to accept the affidavit if defense counsel would furnish some precedent for its admittance. In denying the motion 

### to suppress, the court did not reveal whether 

### or not the affidavit was considered. The day of the trial the prosecution moved 

### to endorse five additional witnesses on the information. These witnesses 

### were connected with an armed robbery which occurred the night before trial. The prosecution believed that the defendant was involved and told the court that they would file additional armed robbery charges against the defendant the same day. The court reserved ruling on the motion. No charges 

### were ever filed, nor 

### were the additional witnesses called. Graves testified attrial and fullyadmitted stabbing CraigMarlow. Hisonlydefense was self-defense. He was convicted of mitigated deliberate homicide and sentenced 

### to twenty years in theMontana StatePrison with ten years suspended. Graves was alsodesignated a nondangerous offender. The following issues have been presented on appeal:1. Whether the District Court erred indenying defendant's motion 

### to suppress, which 

### was based on police procedures and a lack of probable cause to arrest? 2. Whether there

### was sufficientevidence to support the judgment of conviction of mitigated deliberate homicide? 3. Whether the District Court committed reversible 

### error inrefusing 

### to give defendant's proposed self-defense instruction? 4. Whether the prosecution's pretrial conduct prejudiced the defendant's 

### case and justifies reversal? Defendant 

### asserts that the District Court erred indenying hismotion to suppress because: (1)the police failed to conform 

### to mandatory police procedures;(2) Miranda warnings 

### were not given prior to any questioning; (3)the 

### arrest was not supported by probable cause; (4)the confessions and the relinquishment of the knife 

### were involuntary as a result of the coercive atmosphere and defendant's mental and emotional condition; and (5)the taking of the knife constituted an unlawfulwarrantless seizure. Defendant firstcontends that the police officers failed 

### to comply with mandatory provisions contained inMontana's "stop and frisk" statutes, sections 46-5-401 and 46-5-402, MCA, and therefore, suppression is required. These statutes and 

### similar statutes in other jurisdictions were enacted 

### to codify the rule announced in the landmark "stop and frisk" 

### case of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In Terry, the police officer stopped and initiated 

### a pat down frisk on 

### two men who he reasonably believed may be armed and dangerous. The case held thatunder specified conditions, "Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properlybe introduced inevidence against the person from whom they 

### were taken." 392 U.S. at31, 88 S.Ct. at 1885, 20 L.Ed.2d at 911. In short, Terry and the Montana statutes codifying the rule announced therein apply to a much differentfact situationthan our present 

### case. Inour present 

### case there

### was no "stop and friskw. Instead the defendant 

### was merely stopped by the police and asked investigatoryquestions designed 

### to identifyhim as a witness or a suspect in the reported 

### crime. The defendant

### was not frisked,

nor 

### were the police officers searching for a dangerous weapon. As a consequence, the "stop and frisk" statutes based on the rule announced inTerry do not apply to this situation. Turning next 

### to defendant's Miranda issue, it is 

### well established thatMiranda does not apply until a suspect is "in custody" 

### or "deprived of his freedom inany significantway." As



### was stated inOregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct.

"Any interviewof one suspected of a 

### crime by 

### a police officerwillhave coercive aspects to it, simplyby virtue of the fact that the police officer 

### is part of a 

### law enforcement system which may ultimately cause the suspect to be charged with 

### a crime. But police officers 

### are not required 

### to administerMiranda warnings 

### to everyone whom they question. Nor 

### is the requirement of warnings tobe imposed simply because the questioning takes place in the 

### station house, orbecause the questioned person is one whom the police suspect.- Miranda warnings 

### are required onlywhere there has been such a restriction on a-person's freedom as to render him 'in custody.

## ' It 

### was that 

### sort of coercive environment 

### to which Miranda by its 

### terms was made applicable, and 

### to which it 

### is limited." 429 U.S. at495, 97 S.Ct. at714, 50 L.Ed.2d at 719. Inour present case the defendant

### was definitelynot in custodywhen OfficerSturm asked him the 

### twoquestions. Further, any deprivation of freedom occurring 

### was the result of the "coercive aspect" incidental to any conversation between an armed, uniformed police officer and a suspect. As a result, the police were not required to give the Miranda warnings prior to the investigatoryquestions. The defendant next contends that suppression is required because of a lack of probable cause to 

### arrest. The following chain of events which contributed 

### to thepolice officers1knowledge occurred prior 

### to the arrest. The police officers received 

### a call from an airport security guard which reported that a stabbing had occurred 

### atMister Lucky's and that the black suspect 

### was heading 

### west on Airport Road. The securityguard did not indicate how he acquired the knowledge. When the officers approached, with the informant present, the defendant admitted that he 

### was involved inan altercation and that a knife 

### was involved. The defendant then handed the knife 

### to the police officer. Atthis

### time the policemen observed blood

on the knife, on defendant's hands, and on his clothing. Atthis point the report 

### was fullycorroborated by defendant's production of the knife, the blood on hishands and clothing and his admission thathe 

### was involved in

### a knife altercation at

### Mister LuckyIs

# . In a 

### case involving a partially corroborated informant's tip, the United States Supreme Court stated: "Probable cause existswhere 'the facts and 

### circumstances within [the arresting officers

## '] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves 

### to warrant a man of reasonable caution inthe belief that' an offense has been 

### or is being committed. Carroll 

### v. United States, 267 U.S. 132, 162." Draper v. United States (1959), 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 332. It 

### is obvious that the officers possessed sufficient knowledge towarrant a belief that an offense had been committed and that it 

### was committed by the defendant. Defendant next contends that the confessions and the production of the knife 

### were involuntary as a result of the defendant's lack of sophistication. Defendant relies on Statev. White (1965), 146Mont. 226, 405 P.2d 761, for the proposition thatthe age of the defendant, his level of education, and his lack of experience with 

### law enforcement procedures 

### are factors 

### to be consideredin determining voluntariness. However, inWhite, the confession of a 16-year-old who had been interro-gated without counsel present forthree hours 

### was held 

### to be voluntary. InWhite, thisCourt stated: "The age of 

### a defendantminor, his education and hislack of previous experience with the law 

### are also important factors 

### to be considered in determining the voluntariness of a con£ession. The defendant here 

### is 16years old, is inthe ninth grade and had no previous police record. However, these facts alone do not necessarily require the trial court 

### to find the confession inadmissible." 146Mont. at 234, 405 P.2d at 765-766. In contrastwithWhite, Graves 

### was 20 years old with an eleventh grade education; however, there

### was also testimony that he 

### was emotionally disturbed 

### as a result of the stabbing and had consumed a largequantity of alcohol during the day and evening prior 

### to the 

### crime. Defendant had 

### also been read his rights, had himself read them, appeared 

### to understand the rights and signed a writtenwaiver of his rights. No evidence 

### was proffered which indicates thatdefendant 

### was incapable of understanding the rights. Graves himself testified that at the 

### time of the incident he 

### was "kind of drunk" as opposed to 

### "real drunk", and the written confession 

### was signed nearly three and one-half hours later. There also 

### was no evidence indicating coercion other than the atmosphere incidental 

### to any arrest. In addition, Graves1 production of the knife and initial inculpatory statements

### were spontaneous responses during hisfirstcontact with the officers. Under these circumstances, this argument is also lacking in 

### merit. Defendant also maintains thatthe knife should be suppressed 

### as 

### a result of 

### a warrantless search and seizure without consent. In disposing of this issue, we point out that

no search was involved. A police officermerely asked Graves if

a knife 

### was involved inthe altercationwhereupon defendant said "yes" and handed the knife 

### to the police. The defendant 

### asserts that the District Court erred in refusing 

### to accept his affidavit atthe suppression hearing under Stateex rel. Hansen v. District Court (1925), 72 Mont. 245, 233P. 126. However, the 

### District Court did not refuse 

### to accept it. The court stated that it would consider the affidavit contingent upon defense counsel furnishing authority for its consideration. Whether the District Court accepted 

### or rejected the affidavit is not apparent from the record, but the proper result

### was reached ineitherevent. Having already considered defendant's contentions on the 

### merits, 

### we find thathe has not sustained hisburden of proof to suppress the evidence. Defendant next contends that there is insufficient evidence 

### to support the conviction of mitigated deliberatehomicide. "On appeal

### we examine the evidence 

### to determine whether the verdict is supported by substantial evidence. In 

### so doing, 

### we view the evidence inthe light

### most favorable 

### to the State.

# .. Substantial evidence means such relevant evidence 

### as a reasonable mind might accept 

### as adequate 

### to support a conclusion." Statev. Merseal (1975), 167Mont. 412, 415-416, 538 P.2d 1366, 1367-68; and 

### cases cited therein. Viewing the evidence inthislight,



### we find that there

### was sufficientevidence 

### to support a convictionof mitigated deliberate homicide. The defendant confessed tothe stabbing. He 

### also testified "I said [toCraig Marlow],

come outside and 1'11bust your jaw." Another witness testified that 

### a black man fittingthe defendant's description and wearing



### a red shirtand white vest admitted af

### ter the stabbing, "I

### came out cutting. I cuthim up. That's not like

### me." Other 

### testimony reveals that the defendant

### was the onlyblackman 

### atMister Lucky's and thathe 

### was wearing a red shirt and white vest. There was also testimony that the defendantwas under no compulsion to fightthe decedent, and he himself admitted thathe could have returned to his seat atthe bar after Craig 

### Marlow's invitation 

### to go outside. In short, the jury 

### was presented with sufficient evidence to conclude that the defendant 

### was guilty of mitigated deliberate homicide and thathisuse of deadly force



### was not justified.Defendant next contends that the District Court s refusal 

### to give hisoffered instruction on self-defense violates the Due Process Clause. The following instructions 

### were given by the District Court: "InstructionNo. 6 "To sustain the charge of deliberatehomicide, the Statemust prove the following propositions: "FIRST: That the defendant, Charles Henry Graves, caused the death of CraigAlan Marlow; and "SECOND: That the defendant did 

### so purposely 

### or knowingly; and "THIRD: That the defendant 

### -- was notjustified 

### - in using 

### - the forcewhich 

### -- he used. "If you find from your consideration of 

### all the evidence that each of these propositions has been proved beyond 

### a reasonable doubt, then you should find the defendant guilty. "If, on 

### -- theotherhand,

# ----- you find fromyour consideration

### --- of allthevidence

## --- thatany of these propositions 

### --- has notbeen proved beyond 

### a reasonable doubt, 

## -- then you should 

## -- findtheeFendant notauiltv." (Emphasis added.) wInstructionNo. 7 "Criminal homicide 

### is mitigated deliberatehomicide when a homicide which would otherwise be deliberatehomicide is committed under the in£luence of extreme mental oremotional 

### stress forwhich there is reasonable explanation or excuse. The reasonableness of such explanation 

### or excuse shallbe determined from the viewpoint of a reasonable person inthe 

### actor's situation." "Instruction No. 17 "A person is justified inthe use of force

### or threat touse force against anotherwhen and to the extent thathe reasonably believes that such conduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified inthe use of force likely 

### to cause death 

### or serious bodilyharm only if he reasonably believes that such force is necessary toprevent imminent death or serious bodily harm to himself 

### or another or

### to prevent the commission of 

### a forcible felony. " "InstructionNo. 1(inpertinent part)"To this information the defendant has pleaded not guilty, and under thatplea he denies every 

### material allegation of the in£ormation against him, and in order 

### to convict him of the 

### crime charged against him every

### material fact necessary 

### to constitute such 

### crime must be proved by the Stateby competent evidence, beyond a reasonable doubt; and if the jury entertains any reasonable doubt upon any fact 

### or element necessary to constitute the 

### crime charged, it is your duty to give the defendant the benefit of such doubt and 

### to acquit

# . Defendant contends that the District Court erred inrefusing the following proposed instruction: "Defendant's Proposed InstructionNo. 3 "You 

### are instructed that the Statemust prove beyond a reasonable doubt that the defendant did



### . not act in self-defense. If you find that the Statehas failed 

### to prove beyond a reasonable doubt that the defendant did not 

### act in self-defense, you must find the defendant not guilty. In otherwords, if you have a 

### reasonable doubt whether 

### or not the defendant acted in self-defense, your verdict must be not guilty." This Court has been faced with numerous cases challenging self-defense instructions inrecentyears. As a result, Montana 

### lawin this regard has become well-settled. Section 45-3-102, MCA, defines "justifiable use of force

## ," and section45-3-115, MCA, provides that 

### it is an affirmative defense. Since it is an affirmativedefense, rather than an element of deliberatehomicide 

### or mitigated deliberate homicide, there is no constitutional prohibition against placing the burden of proof upon the defendant. Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. However, "[tlhe 

### law inMontana is that although the burden of persuasion remains on the State, inorder to avail himself of the affirmativedefense of self-defense, the defendanthas the burden of producing sufficientevidence on the issues to raise a reasonable doubt of hisguilt." Statev. Lopez (1980)I Mont. 

## ,605 P.2d 178, 182, 37 St.Rep. 36, 41; Statev. Cooper (1979), Mont

# . , 589 P.2d 133, 136, 36 St.Rep. 30, 33; Statev. Grady (1975), 166Mont. 168, 175, 531 P.2d 681, 684. In Statev. Azure (1979), Mon

### t

# . ,591 P.2d1125, 1130, 36 St.Rep. 514, 518, 

### we stated that an instruction stating the prosecution must prove the absence of justification beyond a reasonable doubt is a 

### correct statement of the 

### law. Pursuant 

### to thisMontana 

### law, in the context of the jury instructions given in the present 

### case, it 

### is obvious that the District Court erred. Instruction No. 6 includes the absence of justifiable use of force 

### as an element of the 

### crime of deliberate homicide; this is a misstatement of the 

### law. Absence of justification 

### is an affirmative defense which requires the defendant to produce sufficientevidence before it 

### is placed in issue. Although 

### we find that the District Court committed 

### error in giving instructionNo. 6, our discussionmay not end here. We must determine if this error

### was prejudicial 

### or merely harmless and whether the District Court erred inrefusing 

### to give defendantIsproposed instructionNo. 3. In examining self-defense instructions this Court has repeatedly stated several principles which govern the review of challenged instructions. The instructions must be viewed 

### as a whole to determine if they have limited the defense from fairly presenting his theory of defense. The District Court need not give repetitious instructions nor instruct on every nuance of a theory 

### of defense. See Statev. Bashor (1980), Mont

# . I 614 P.2d 470, 484, 37 St. Rep. 1098, 1113; Statev. Hamilton (1980

### 1, Mont

# . ,605 P.2d 1121, 1129, 37 St.Rep. 70, 79; Statev. Freeman (1979), Mon

### t

# . , 599 P.2d 368, 373, 36 St.Rep. 1622, 1628-29; Statev. Azure, supra, 591 P.2d 

### at 1130, 36 St.Rep. at 519; Statev. Reiner (1978), Mont

# . , 587 P.2d 950, 953-954, 35 St.Rep. 1861, 1864. Itmust be noted that instructionNo. 17 is a verbatim recitation of Montana's "justifiable use of force" statute, section 45-3-102, MCA. InBashor, Freeman, Azure and ~einer, the



### same instruction

### was given along with omnibus instructions regarding the burden of proof and presumption of innocence. ThisCourt approved the instructions stating that the defendant could fairlypresent his theory of defense. Azure specifically stated that a separate instruction on the burden of proof with regard 

### to self-defense would be merely repetitive. In Reiner it 

### was stated that the District Court's failure 

### to furtherexplaindefendant's burden of raising a reasonable doubt of guilt 

### is not prejudicial, and thatmerely reciting section45-3-102, MCA, 

### is not so misleading 

### as to justify 

### a new 

### trial. As

### we stated inReiner: 

### "

# . . . the 

### test tobe applied when 

### error is predicated on a jury instruction is whether, when the instruction 

### is considered 

### as 

### a part of the whole body of instructions, the instruction 

### is prejudicial to the appealing party. State

### v. Caryl (1975), 168Mont. 414, 430, 543 P.2d 389, 398, 

### states the applicable rule: "lIn determining the effect of given instruct ions, all instruct ions must be considered 

### as a whole, and if they fairlytender the 

### case to the jury, the fact that one instruction, standing alone, 

### is not 

### as full

### or accurate 

### as it might have been 

### is not reversible error.'" 587 P.2d at 953-954, 35 St.Rep. 

### at 1864. Defendant's proposed instructionNo. 3 merely repeats instruction No. 6 and the previously quoted portion of instructionNo. 1, which provides that the Statemust prove an absence of justif icationbeyond a reasonable doubt. The onlydistinction between the defendant's proposed instruct ion and instructionNo. 6 regarding the burden of proof 

### is the use of the 

### term "self-defense" as opposed to the use of "justified inusing the forcewhich he used.

### " In this light, instructionNo. 3 is purely repetitive and in no way prevents the defendant from fairlypresenting his theory of defense. Turning to the court's misstatement of law in instruction No. 6, we find the errorharmless. No prejudice 

### was suffered by the defendant; in fact the instruction as given was beneficial to hisdefense. Instead of instructing the jury that the defendant has the burden of producing sufficientevidence to put justifiable use of force in issue, the District Court in effect instructed the jury that self-defense 

### was in issue and must beproved by the Statebeyond a reasonable doubt. Thus, the District Judge in essence, made a finding of fact beneficial 

### to the defendant which should have been made by the jury. Under no theorymay thisbe considered reversible 

### error. Finally, the defendant asserts thatprosecutorial misconductprejudiced hispresentation of the 

### case and denied him a fairtrial. The factual basis for thiscontention is a motion seeking the endorsement of five additional witnesses on the information. This motion was made by the prosecution on the firstday of trial. In arguing the motion, the county attorney expressed a belief that the defendant was involved ina robbery atknife-point the evening before the trial and that the additional witnesses would be needed to show a continuing course of conduct. The court reserved ruling on the motion stating that it presented 

### a question of relevancy and required a weighing of the probative value of the evidence against 

### its prejudicial impact. Defendant's contention is that the motion was not made by the county attorney ingood faith and thatdefense counsel was forced to spend valuable 

### time investigating the alleged robbery and to change defense tactics. However, if defense counsel did spend extensive 

### timepreparing 

### to defend against thisallegation his action 

### was entirelypremature. The court took the matter under advisement and the witnesses 

### were never endorsed upon the information. Under these circumstances, there 

### is no basis for finding reversible 

### error inthiscontext. The judgment of conviction is affirmed.

Chief Justice 

### We concur: 

### f

# ................................ Justices

### Mr. Justice John C. Sheehy, specially concurring:

I concur in the result foregoing,because instruction

no. 6 embodied the lawof the case and denial of defendant's proposed instructionno. 3merely avoided repetition in the instructions. Assuming, however, that in the future,prosecutors will not offer instructions such as court's no. 6,which include as an element for the State to prove that the defendant was not justified in using the force which he used, it appears that

some comment is necessary as to proper instructions in a socalled self-defense case. First, Ibelieve thatmerely instructing the jury,as was done in this case in instructionno. 17, in the language of the statute, section 45-3-102,MCA, respecting justified force gives the jury an abstract statement which is of little use in its determinations. In caseswhere the use of justified force is claimed by the defendant, the jury, at least where the evidence supports it, should be given an instruction that sets out the elements which are to be considered in determining whether the force was justified. These are: 

### (1)the defendantmust not be the aggressor; (2) 

### the danger of harm to himmust be a present one, not merely threatened at a future time, or without the present ability of carrying out a threat; (3)the force threatenedmust be unlawful--either criminal or tortious; (4) 

### the person must actually believe that the danger exists, that is, use of force is necessary to avert the danger,and that the kind and amount of forcewhich he uses is necessary; (5)his belief, in each of the aspects described, is reasonable even if it ismistaken. See, Criminal Law Commission Comment (M.C.C.

### 1973), section 94-3-102, R.C.M. 

### 1947. Secondly, Ibelieve that the jury shouldbe instructed in a case where the defendant claims justification in the use of force that he has established his defense if he raises a reasonable doubt in theminds of the juries as to theproof by the State of the elements of the crime charged. Thirdly, Ibelieve the jury should furtherbe instructed that if the defendant fails to meet his burden of persuasion by raising such reasonable doubt, it remains in any event, the duty of the State to prove the elements of the crime charged beyond a reasonable doubt. There is a good deal of cloudy area in the instructions which we have been approving in homicide cases where justified force is claimed, not the least ofwhich Ipointed out inmy dissent in Statev. Bashor (19801, Mont

# . I 

### 614P.2d 470, 37 St.Rep. 1098.

Mr. Justice Daniel J. Sheadissents and will file awritten dissent later.