Montana Criminal Jury Instructions
CHAPTER 3: JUSTIFIABLE USE OF FORCE

3-104 Use of Force by Aggressor

The use of force in defense of [a person][occupied structure][other property] is not available to a person who

[1] is attempting to commit, committing, or escaping after the commission of a forcible felony;

OR

[2] purposely or knowingly provokes the use of force against himself/herself unless:

[a] such force is so great that he/she reasonably believes that he/she is in imminent danger of death or serious bodily harm and that he/she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant.

OR

[b] in good faith he/she withdraws from physical contact with the assailant and indicates clearly to the assailant that he/she desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force.

GIVEN: ______________________________

DISTRICT JUDGE

SOURCE: MCJI 3-104 (2022)

Plaintiff’s Proposed Instruction No._____ Defendant’s Proposed Instruction No._____

Given as Instruction No.______ Refused ______ Withdrawn______ By _______

[Use of Force by Aggressor, No. 3-104, 2022, Source and Comment]

SOURCE: MCA § 45-3-105 (2021); See also, State v. Gonzales, 278 Mont. 525, 926 P.2d 705(1996) ( overruled in part on other grounds by Whitlow v. State, 343 Mont. 90, 183 P.3d 861 (2008)); State v. Cartwright, 200 Mont. 91, 650 P.2d 758 (1982); and State v. Sorenson, 190 Mont. 155, 619 P.2d 1185 (1980).

COMMENT: In preparing this instruction, either [1], [2a], or [2b] should be selected based upon the defense asserted.

It is appropriate to give this instruction if there is conflicting evidence about whether the defendant was the aggressor. State v. Erickson, 2014 MT 304, 377 Mont. 84, 338 P.3d 598.

The duty to retreat in this section is not inconsistent with MCJI 3-110 that there is no duty to retreat because that instruction applies to a nonaggressor. State v. King, 2016 MT 323, 385 Mont. 483, 385 P.3d 561. If there is evidence to support both instructions, they should both be given and the jury must decide whether the defendant was an aggressor.

 

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