Missouri Approved Instructions – Criminal (MAI-CR)
408.00 SERIES INSTRUCTIONS REQUIRED IF REQUESTED BY DEFENDANT

408.20 Justification: Emergency Measures

PART A – GENERAL INSTRUCTIONS

One of the issues (as to Count _____) (in this case) is whether the conduct of the defendant was justified as an emergency measure. In this state, conduct which would otherwise be an offense can be lawful in certain circumstances.

In order for conduct which would otherwise be an offense to be lawful, it must be necessary as an emergency measure to avoid an imminent public or private injury which is about to occur through no fault of the defendant and this injury must be so serious that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the harm or injury sought to be prevented by the statute making the conduct an offense.

The necessity and justification for the conduct, however, cannot be based only on the morality or advisability of the statute making such conduct an offense.

PART B – SPECIFIC INSTRUCTIONS

(As to Count _____, if) (If) you find and believe from the evidence beyond a reasonable doubt that the defendant engaged in the conduct submitted in Instruction No. _____, you will then decide whether that conduct was lawful as an emergency measure.

If you find and believe from the evidence that it is more probably true than not true:

First, that through no fault of defendant imminent danger of [ Describe danger of public or private injury that defendant sought to avoid.] was about to occur, and

Second, that the conduct of defendant, as submitted in Instruction No. _____, was necessary as an emergency measure to avoid such injury, and

Third, that such injury, then imminent, was of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighed the harm caused or threatened by defendant’s conduct as submitted in Instruction No. _____,

then you must find the defendant not guilty (under Count _____) by reason of justifiable emergency measures.

Notes on Use

1. Section 563.026, RSMo 2016. This is a revision of MAI-CR 3d 308.20 (1-1-87). This revision is to the Notes on Use only.

2. The defense of emergency measures is an affirmative defense. The burden of injecting the issue and the burden of persuasion is on the defendant.

3. The defense of emergency measures does not provide a defense to murder or any class A felony. Section 563.026.1.

4. This instruction must be given upon request of the defendant provided the court determines that the claimed facts and circumstances, if true, are legally sufficient for the defense of emergency measures. See Section 563.026.2. For discussion of when the instruction may be given in prosecutions for escape, see State v. Kirkland, 684 S.W.2d 402 (Mo. App. 1984), State v. Daniels, 641 S.W.2d 488 (Mo. App. 1982), State v. Baker, 598 S.W.2d 540 (Mo. App. 1980) (a pre-code case). For its application to trespass prosecutions, see State v. Diener, 706 S.W.2d 582 (Mo. App. 1986), State v. Levering, 661 S.W.2d 792 (Mo. App. 1983), City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo. App. 1982), State v. Hunt, 630 S.W.2d 211 (Mo. App. 1982).

5. If this instruction is given, there will be a crossreference in the verdict director. That cross-reference will be made as follows: At the end of the sentence that reads “then you will find the defendant guilty (under Count _____) of __________.” remove the period and add “, unless you find and believe it is more probably true than not true that the defendant is not guilty by reason of justifiable emergency measures, as submitted in Instruction No. _____.” The next phrase beginning “However, unless you find and believe from the evidence . . .” will be omitted.

 

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