• 2006 - Included Offense
  • K-2.30
    • Charge To Jury
    • Convictions
    • Introductory Instructions - Special Situations
  • If you find the Defendant not guilty of the crime of _______________, then you must consider whether the Defendant is guilty of the crime of _______________, a crime that is necessarily included in the offense charged. * * * * * NDCC 12.1-01-04(15) State v. Keller, 2005 ND 86, 695 NW2d 703 NOTE: Use this instruction if the Defendant is charged with a crime that includes a lesser crime described in other sections of the Code and applicable case law. "Included Offense" means an offense: 1) that is established by proof of the same or less than all the facts required to establish commission of the offense charged; 2) that consists of criminal facilitation of or an attempt of solicitation to commit the offense charged; or 3) that differs from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission. Before giving this instruction, the Judge must determine that the lesser crime is an included offense under 12.1-01-04(15). Supplemental instructions as to the essential elements of the lesser crime must be given if applicable. State v. Sheldon, 301 NW2d 604, 609 (ND 1980), cert. denied, 450 US 1002 (1981).
    • 12.1-01-04(15)
    • 31-11-03(2)
    • Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 NW2d 173
    • Kummer v. City of Fargo, 516 NW2d 294 (ND 1994
    • Maragos v. Union Oil Co. of California, 1998 ND 180, 584 NW2d 850
    • McLean v. Kirby Co., 490 NW2d 229 (ND 1992)
    • Redahl v. Stevens, 250 NW 534 (ND 1933)
    • Serhienko v. Kiker, 392 NW2d 808 (ND 1986)
    • Shoemaker v. Sonju, 108 NW 42 (ND 1906)
    • Slaubaugh v. Slaubaugh, 466 NW2d 573 (ND 1991)
    • State v. Keller, 2005 ND 86, 695 NW2d 703
    • Stoner v. Nash Finch, Inc., 446 NW2d 747 (ND 1989)
  • Notes: Use this instruction if the Defendant is charged with a crime that includes a lesser crime described in other sections of the Code and applicable case law. "Included Offense" means an offense: 1) that is established by proof of the same or less than all the facts required to establish commission of the offense charged; 2) that consists of criminal facilitation of or an attempt of solicitation to commit the offense charged; or 3) that differs from the offense charged only in that it constitutes a less serious harm or risk of harm to the same person, property, or public interest, or because a lesser degree of culpability suffices to establish its commission. Before giving this instruction, the Judge must determine that the lesser crime is an included offense under 12.1-01-04(15). Supplemental instructions as to the essential elements of the lesser crime must be given if applicable. State v. Sheldon, 301 NW2d 604, 609 (ND 1980), cert. denied, 450 US 1002 (1981). 2009 - reviewed with no changes