                                           No.    92-099   .


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                 f992



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:   J u n e 3 0 , 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 homi-
         cide?
    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
