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: 

For Appellant: 

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 1 6 198D 

Decided : q qg81 

Filed: alN . .- - 7 1981 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant Charles Henry Graves was charged by information 

with deliberate homicide and aggravated assault. He was convicted of mitigated deliberate homicide in the Lewis and Clark 

County District Court and sentenced to twenty years in the 

Montana State Prison with ten years supended. 

Defendant Charles Graves, a 20-year old black man with an 

eleventh grade education, spent most of April 17, 1979, drinking 

beer with friends in Helena, Montana. That evening defendant and 

several friends went 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 to her at her table and began talking with 

her. The woman told him that she did not wish to be with him. 

Graves left the table and sat at the bar and the woman from Idaho 

joined Craig Marlow, the decedent, at another table. 

A short while later the defendant approached Marlow's 

table to ask the Idaho woman to dance. Before defendant could 

ask her to dance, Craig Marlow jumped up and told the defendant 

to stop hassling 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 

allegedly jumped up and made some comments about black men 

thinking they could get all the women and said there wasn't 

enough room in Helena for blacks. At this point 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 sitting with Craig Marlow earlier, allegedly 

followed Graves outside. When Marlow reached the bottom of the 

stairs, and while defendant was still on the steps, he turned and 

hit defendant 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 that he was "kind of drunk" as opposed to 

"real drunk," that he was afraid all three white men were going 

to jump him and that he 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 in a state of shock, while others testified that he was very 

calm and completely in control of himself. Graves went into 

Mister Lucky's to get his jacket and then began walking down 

Airport Road toward Helena. 

He was stopped by two police officers who were responding 

to a call from Pete Hartman, an airport security guard. Hartman 

told the police that a stabbing had occurred at Mister Lucky's 

saloon and that he was following the black suspect down Airport 

Road. Officer Sturm proceeded to intercept the suspect and saw 

the defendant walking near the State Publishing Building. Sturm 

pulled his vehicle up in front of the defendant. Officer Melton 

and Pete Hartman pulled their vehicles up behind the defendant. 

Both police officers were uniformed, armed and driving marked 

police cars. Hartman was also armed and wearing a security guard 

uniform. Officer Melton called out to the defendant to "hold 

it," and Officer Sturm approached the defendant. Sturm asked 

defendant if he had been involved in an altercation at Mister 

Lucky's. Graves responded that he had. When asked if a knife 

was involved, Graves said "yes" and turned the knife over to the 
police. At this point the officer noticed blood on defendant's 

hands and placed him under arrest and gave him his Miranda warnings. 

En route to the police station, the defendant made several 

remarks concerning his involvement in the incident. He was 

booked into the city jail. The same morning at approximately 

4:25 a.m., the defendant signed a written confession at the 

county jail after once again being informed of his rights and 

after signing a statement that he knew and understood his rights. 

A urine sample was also taken at this time. 

A suppression hearing was held on August 30, 1979. The 

defendant sought to supress his oral confession in the police 

car, his written confession taken at the county jail, the knife 

used, and the urine sample. The defendant did not take the stand 

in the suppression hearing, but he did submit an affidavit. The 

court initially ref used to accept the a f f idavit; however, at the 

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 at trial and fully admitted stabbing 

Craig Marlow. His only defense was self-defense. He was convicted of mitigated deliberate homicide and sentenced to twenty 

years in the Montana State Prison with ten years suspended. 

Graves was also designated a nondangerous offender. 

The following issues have been presented on appeal: 
1. Whether the District Court erred in denying 

defendant's motion to suppress, which was based on police procedures and a lack of probable cause to arrest? 

2. Whether there was sufficient evidence to support the 

judgment of conviction of mitigated deliberate homicide? 

3. Whether the District Court committed reversible error 

in refusing 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 in denying 

his motion 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 unlawful warrantless seizure. 

Defendant first contends that the police officers failed 

to comply with mandatory provisions contained in Montana'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 that under specified conditions, "Such a search is a reasonable search under the Fourth Amendment, and any weapons seized 

may properly be introduced in evidence against the person from 

whom they were taken." 392 U.S. at 31, 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 different 
fact situation than our present case. 

In our present case there was no "stop and friskw. Instead 

the defendant was merely stopped by the police and asked investigatory questions designed to identify him 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 in Terry do not apply to this situation. 

Turning next to defendant's Miranda issue, it is well 

established that Miranda does not apply until a suspect is "in 

custody" or "deprived of his freedom in any significant way." As 

was stated in Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 

"Any interview of one suspected of a crime by a 

police officer will have coercive aspects to it, 

simply by 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 administer Miranda warnings to 

everyone whom they question. Nor is the 

requirement of warnings to be imposed simply 

because the questioning takes place in the station house, or because the questioned person is 

one whom the police suspect.- Miranda warnings 

are required only where 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. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 

719. 

In our present case the defendant was definitely not in 

custody when Officer Sturm asked him the two questions. 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 investigatory questions. 

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 the 
police officers1 knowledge occurred prior to the arrest. The 

police officers received a call from an airport security guard 

which reported that a stabbing had occurred at Mister Lucky's and 

that the black suspect was heading west on Airport Road. The 

security guard did not indicate how he acquired the knowledge. 

When the officers approached, with the informant present, the 

defendant admitted that he was involved in an altercation and 

that a knife was involved. The defendant then handed the knife 

to the police officer. At this time the policemen observed blood 

on the knife, on defendant's hands, and on his clothing. At this 

point the report was fully corroborated by defendant's production 

of the knife, the blood on his hands and clothing and his 

admission that he was involved in a knife altercation at Mister 

Lucky I s . 

In a case involving a partially corroborated informant's 

tip, the United States Supreme Court stated: 

"Probable cause exists where '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 

in the 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 to warrant 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 State v. 

White (1965), 146 Mont. 226, 405 P.2d 761, for the proposition 

that the age of the defendant, his level of education, and 

his lack of experience with law enforcement procedures are 

factors to be considered in determining voluntariness. However, 

in White, the confession of a 16-year-old who had been interro- 
gated without counsel present for three hours was held to be 

voluntary. In White, this Court stated: 

"The age of a defendant minor, his education and 

his lack 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 16 years old, is in the 

ninth grade and had no previous police record. 

However, these facts alone do not necessarily 

require the trial court to find the confession 

inadmissible." 146 Mont. at 234, 405 P.2d at 

765-766. 

In contrast with White, 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 large quantity 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 

written waiver of his rights. No evidence was proffered which 

indicates that defendant 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 his first contact with the officers. 

Under these circumstances, this argument is also lacking in 

merit. 

Defendant also maintains that the 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 officer merely asked Graves if 

a knife was involved in the altercation whereupon defendant said 

"yes" and handed the knife to the police. 

The defendant asserts that the District Court erred in 

refusing to accept his affidavit at the suppression hearing under 

State ex rel. Hansen v. District Court (1925), 72 Mont. 245, 233 
P. 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 af f idavit is 

not apparent from the record, but the proper result was reached 

in either event. Having already considered defendant's contentions on the merits, we find that he has not sustained his burden 

of proof to suppress the evidence. 

Defendant next contends that there is insufficient evidence to support the conviction of mitigated deliberate homicide. 

"On appeal we examine the evidence to determine whether the verdict is supported by substantial evidence. In so doing, we view 

the evidence in the light most favorable to the State. . . Substantial evidence means such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion." State v. 

Merseal (1975), 167 Mont. 412, 415-416, 538 P.2d 1366, 1367-68; 

and cases cited therein. Viewing the evidence in this light, 

we find that there was sufficient evidence to support a conviction of mitigated deliberate homicide. The defendant confessed 

to the stabbing. He also testified "I said [to Craig Marlow], 

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

that a black man fitting the defendant's description and wearing 

a red shirt and white vest admitted af ter the stabbing, "I came 

out cutting. I cut him up. That's not like me." Other testimony reveals that the defendant was the only black man at Mister 

Lucky's and that he was wearing a red shirt and white vest. 

There was also testimony that the defendant was under no compulsion to fight the decedent, and he himself admitted that he 

could have returned to his seat at the bar af ter 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 that his use of deadly force 

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

to give his offered instruction on self-defense violates the Due 

Process Clause. 

The following instructions were given by the District 

Court: 

"Instruction No. 6 

"To sustain the charge of deliberate homicide, 

the State must prove the following propositions : 

"FIRST: That the defendant, Charles Henry 

Graves, caused the death of Craig Alan Marlow; 

and 

"SECOND: That the defendant did so purposely or 

knowingly; and 

"THIRD: That the defendant -- was not justified - in 

using - the force which -- 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 the other hand, ----- you find from your consideration --- of all thevidence --- that any of these 

propositions --- has not been proved beyond a reasonable doubt, -- then you should -- findtheeFendant 

not auiltv." (Emphasis added.) 

wInstruction No. 7 

"Criminal homicide is mitigated deliberate homicide when a homicide which would otherwise be 

deliberate homicide is committed under the 

in£ luence of extreme mental or emotional stress 

for which there is reasonable explanation or 

excuse. The reasonableness of such explanation 

or excuse shall be determined from the viewpoint 

of a reasonable person in the actor's 

situation." 

"Instruction No. 17 

"A person is justified in the use of force or 

threat to use force against another when and to 

the extent that he 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 in the 

use of force likely to cause death or serious 

bodily harm only if he reasonably believes that 

such force is necessary to prevent imminent 

death or serious bodily harm to himself or 

another or to prevent the commission of a forcible felony. " 

"Instruction No. 1 (in pertinent part) 
"To this information the defendant has pleaded not guilty, and under that plea he denies every 

material allegation of the in£ ormat ion 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 State by competent evidence, 

beyond a reasonable doubt; and if the jury 

entertains any reasonable doubt upon any fact or 

element necessary to cons ti tute 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 in refusing the 

following proposed instruction: 

"Defendant's Proposed Instruction No. 3 

"You are instructed that the State must prove 

beyond a reasonable doubt that the defendant did . not act in self-defense. If you find that the 

State has failed to prove beyond a reasonable 

doubt that the defendant did not act in 

self-defense, you must find the defendant not 

guilty. In other words, 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 in recent years. As a result, Montana 

law in this regard has become well-settled. Section 45-3-102, 

MCA, defines "justifiable use of force ," and section 45-3-115, 

MCA, provides that it is an affirmative defense. Since it is an 

affirmative defense, rather than an element of deliberate homicide 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 in Montana is that 

although the burden of persuasion remains on the State, in order 

to avail himself of the affirmative defense of self-defense, the 

defendant has the burden of producing sufficient evidence on the 

issues to raise a reasonable doubt of his guilt." State v. Lopez 

(1980) I Mont. , 605 P.2d 178, 182, 37 St.Rep. 36, 41; 

State v. Cooper (1979), Mont . , 589 P.2d 133, 136, 36 

St.Rep. 30, 33; State v. Grady (1975), 166 Mont. 168, 175, 531 

P.2d 681, 684. In State v. Azure (1979), Mon t . , 591 P.2d 
1125, 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 this Montana 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 sufficient evidence before it is placed in issue. 

Although we find that the District Court committed error in 

giving instruction No. 6, our discussion may not end here. We 

must determine if this error was prejudicial or merely harmless 

and whether the District Court erred in refusing to give 

defendant Is proposed instruction No. 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 State v. Bashor (1980), Mont . I 

614 P.2d 470, 484, 37 St. Rep. 1098, 1113; State v. Hamilton 

(1980 1, Mont . , 605 P.2d 1121, 1129, 37 St.Rep. 70, 79; 

State v. Freeman (1979), Mon t . , 599 P.2d 368, 373, 36 

St.Rep. 1622, 1628-29; State v. Azure, supra, 591 P.2d at 1130, 

36 St.Rep. at 519; State v. Reiner (1978), Mont . , 587 

P.2d 950, 953-954, 35 St.Rep. 1861, 1864. 

It must be noted that instruction No. 17 is a verbatim 

recitation of Montana's "justifiable use of force" statute, section 45-3-102, MCA. In Bashor, Freeman, Azure and ~einer, the 

same instruction was given along with omnibus instructions 

regarding the burden of proof and presumption of innocence. This 
Court approved the instructions stating that the defendant could 

fairly present 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 further explain defendant's 

burden of raising a reasonable doubt of guilt is not prejudicial, 

and that merely reciting section 45-3-102, MCA, is not so 

misleading as to justify a new trial. As we stated in Reiner: 

" . . . the test to be 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), 168 Mont. 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 fairly tender 

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 instruction No. 3 merely repeats 

instruction No. 6 and the previously quoted portion of instruction No. 1, which provides that the State must prove an absence 

of just if ication beyond a reasonable doubt. The only distinct ion 

between the defendant's proposed instruct ion and instruct ion No. 

6 regarding the burden of proof is the use of the term 

"self-defense" as opposed to the use of "justified in using the 

force which he used. " In this light, instruction No. 3 is purely 

repetitive and in no way prevents the defendant from fairly presenting his theory of defense. 

Turning to the court's misstatement of law in instruction 

No. 6, we find the error harmless. No prejudice was suffered by 

the defendant; in fact the instruction as given was beneficial to 

his defense. Instead of instructing the jury that the defendant 

has the burden of producing sufficient evidence to put justifiable use of force in issue, the District Court in effect 

instructed the jury that self-defense was in issue and must be 
proved by the State beyond 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 

theory may this be considered reversible error. 

Finally, the defendant asserts that prosecutorial misconduct prejudiced his presentation of the case and denied him a 

fair trial. The factual basis for this contention is a motion 

seeking the endorsement of five additional witnesses on the 

information. This motion was made by the prosecution on the 

first day of trial. In arguing the motion, the county attorney 

expressed a belief that the defendant was involved in a robbery 

at knife-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 in good faith and that defense counsel was 

forced to spend valuable time investigating the alleged robbery 

and to change defense tactics. However, if defense counsel did 

spend extensive time preparing to defend against this allegation 

his action was entirely premature. 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 in this context. 

The judgment of conviction is af f irmed. 

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 law of the case and denial of defendant's 

proposed instruction no. 3 merely 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, I believe that merely instructing the jury, as was 

done in this case in instruction no. 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 cases where 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 defendant must not be the aggressor; (2) 

the danger of harm to him 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 must 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 force which he uses is necessary; (5) his 

belief, in each of the aspects described, is reasonable even 

if it is mistaken. See, Criminal Law Commission Comment (M.C.C. 
1973), section 94-3-102, R.C.M. 1947. Secondly, I believe 

that the jury should be 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 the minds of the juries as to the proof by the State of 

the elements of the crime charged. 

Thirdly, I believe the jury should further be 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 of which I pointed out 

in my dissent in State v. Bashor (19801, Mont . I 

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

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.