THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Murder: Self-Defense

    1.    Self-Defense: Intent To Act In Self-Defense Can Be Formed In An Instant 
           Immediately Prior To Defensive Act
    2.    Firing Weapon To Frighten And Discourage Prowlers Is Not Such Conduct 
           That A Person Could Reasonably Foresee Was Likely To Result In Serious 
           Injury Or Death
    3.    Firing Weapon In Defense Of Persons And/Or Property
    4.    Firing Weapon To Frighten And Discourage Prowlers: Factors To Consider
    5.    Jury Should Consider Defendant's Opportunity To Resort To Law Enforcement 
           For Protection
    6.    In Determining Whether Defendant Was Criminally Negligent Jury Should 
           Consider Only The Conduct Itself And Not Any Harm Resulting From The Conduct
    7.    Jury May Consider Past Violence By Trespassers And Burglars Against Persons 
           Similarly Situated As The Defendant
    8.    Self-Defense: Victim’s Reputation For Violence Or Mental Instability
    9.    Jury Must Find That Killing Was Not Privileged Under The Law Of Self-Defense

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Self-Defense: Intent To Act In Self-Defense Can Be Formed In An Instant Immediately Prior To Defensive Act

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Just as the crime of first degree intentional homicide recognizes that an intent to kill can be formed on the instant prior to the firing of a fatal shot and that a person need not brood or contemplate the killing for an appreciable time before that instant, so the intent to act in self-defense can be formed on the instant immediately prior to firing a shot.

    Once a defendant has testified that at the instant before firing a shot which proved to be fatal that (he/she) acted in self-defense, the prosecution has the burden of proving beyond a reasonable doubt that this was not (his/her) intent immediately prior to firing that shot.

    It is the intent to defend (himself/herself) immediately prior to the firing of the shot which must be disproven not an intent at some earlier time. Moreover, in considering whether the prosecution has disproved that the defendant intended to defend (himself/herself), it is the mind of the defendant which must be considered and not the mid of someone in the defendant's position.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Firing Weapon To Frighten And Discourage Prowlers Is Not Such Conduct That A Person Could Reasonably Foresee Was Likely To Result In Serious Injury Or Death

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In determining whether or not __________ (name of defendant) should have realized that (his/her) conduct created a substantial risk of death or great bodily harm to the intruders at __________ (location), you should be aware that as a matter of law, firing a __________ (weapon, e.g., pistol) to frighten and discourage the return of prowlers is not such conduct that a person could reasonably foresee was likely to result in serious injury or death.

People v. Post, 39 Ill. 2d 101, 233 N.E.2d 565 (1968).

See NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Firing Weapon In Defense Of Persons And/Or Property

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In determining whether or not __________ (name of defendant) should have realized that (his/her) conduct created an unreasonable risk of death or great bodily harm to another, you are instructed that a property owner may shoot with impunity where the incursion upon (his/her) property is also attended by a threat of personal harm to (himself/herself), (his/her) family or others which (he/she) is entitled to defend.

Annotation, Civil Liability for Use of Firearm in Defense of Habitation or Property, 100 A.L.R.2d 1021, 1024 (1965); Wis. J.I. Civil 1005 (1990); Wis. J.I. Crim. 1175 (1989); Bennett v. Dunn, 507 So. 2d 451 (Ala. 1987); Edwards v. Great American Insurance Co., 146 So.2d 260 (La. Ct. App. 1962); People v. Post, 39 Ill.2d 101, 233 N.E.2d 565 (1968).

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Firing Weapon To Frighten And Discourage Prowlers: Factors To Consider

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In considering the reasonableness of __________’s (name of defendant) conduct, and specifically whether __________ (name of defendant) should have realized that (his/her) conduct created an unreasonable risk of death or great bodily harm to another under the circumstances confronting (him/her) at the time of the alleged conduct, you are instructed to consider the following matters:

    1. The hour of the day or night when the conduct occurred;

    2. Whether __________ (name of victim) was a trespasser and/or burglar;

    3.Whether prior burglaries of similar properties had occurred in the recent past;

    4. Whether during some of these prior burglaries at other locations, property owners had been stabbed or clubbed by the intruders;

    5. Whether at the time the intrusion to __________ (name of location) was made by __________ (name of victim), the location was occupied;

    6. Whether the intruder was armed with a __________ (tupe of weapons e.g., hunting knife);

    7. Whether law enforcement assistance was readily available;

    8.Whether __________ (name of defendant) had been aroused from sleep;

    9. Whether the intruders failed to respond to warnings;

    10. Whether __________’s (name of defendant) family [and employees] were in the same vicinity and may also have been endangered by the intruders;

    11. Whether there were multiple intruders;

    12. Whether __________ (name of defendant) has a reputation for peaceableness in (his/her) community;

    13. And that darkness affected __________’s (name of defendant) visibility.

Bennett v. Dunn, 507 So. 2d 451 (Ala. 1987); Edwards v. Great American Insurance Company, 146 So. 2d 260 (La. Ct. App. 1962); Bond v. Toriello, 260 So. 2d 727 (La. Ct. App. 1972); Mitsu Nakashima v. Takase, 8 Cal. App. 2d 35, 46 P.2d 1020 (1935); People v. Post, 39 Ill. 2d 101, 233 N.E.2d 565 (1968); Turner v. State, 64 Wis. 2d 45, 51, 218 N.W.2d 502 (1974); State v. Davidson, 44 Wis. 2d 177, 19192, 170 N.W.2d 755 (1969); United States v. Vole, 435 F.2d 774, 776 (1970); United States v. Grimes, 413 F.2d 1376, 1378 (7th Cir. 1969).

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    Jury Should Consider Defendant's Opportunity To Resort To Law Enforcement For Protection

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370, 376 (1982).

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    In Determining Whether Defendant Was Criminally Negligent Jury Should Consider Only The Conduct Itself And Not Any Harm Resulting From The Conduct

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Somers v. Superior Court in and for County of Sacramento, 32 Cal. App. 3d 961, 108 Cal. Rptr. 630, 636 (1973).

State v. Johnson, Case No. F-954865 (Milwaukee County, Wisconsin 1996); State v. Pezze, File No. 91-CF-45 (Bayfield County Circuit Court, March, 1992).

See NCJIC Chapter 52: Criminal Negligence.

See NCJIC Chapter 53: Ordinary Negligence And Recklessness.

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

7.    Jury May Consider Past Violence By Trespassers And Burglars Against Persons Similarly Situated As The Defendant

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633, 635-37 (1991); Toledo v. State, 452 So.2d 661 (Fla. App. 3 Dist. 1984); Moskalik v. Dunn, 392 Mich. 583, 221 N.W.2d 313 (1974) (Williams concurring); McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 253.4.9 [Self Defense: Prior Acts Or Threats].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

8.    Self-Defense: Victim’s Reputation For Violence Or Mental Instability

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    It is __________’s (name of defendant) theory of defense that at the instant before (he/she) fired the fatal shot (he/she) was terrified and believed that __________ (name of victim) was going to draw a gun and kill (him/her).

    It is further (his/hr) theory that (he/she) knew that __________ (name of victim) had shot at other persons and that __________ (name of victim) had a reputation for armed violence. If the evidence you have heard in support of __________’s (name of defendant) theory of defense causes you to find that the prosecution has not disproven self-defense, then you should find __________ (name of defendant) not guilty of first degree intentional homicide.

    Evidence has been received to the effect that the defendant was aware at the time of this incident of prior instances of violent and mentally unstable conduct by the decedent. When determining whether the defendant reasonably believed that (his/her) use of force was necessary to prevent imminent death or great bodily harm to __________ (name of third party), you are instructed to consider the effect of these prior instances of the decedent's violent and mentally unstable conduct on the defendant's state of mind regarding the danger posed by the decedent.

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 253.4.9 [Self Defense: Prior Acts Or Threats].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

9.    Jury Must Find That Killing Was Not Privileged Under The Law Of Self-Defense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    If you find that the defendant did intentionally use force likely to cause death or great bodily harm against __________ (name of victim), as charged in the count of the information, but that (he/she) did so under such circumstances that under the law of self-defense as it has been explained to you, such use of force was privileged, then you must find the defendant not guilty, giving to the defendant the benefit of any reasonable doubt as to whether (his/her) conduct was privileged under the law of self-defense.

    In other words, before you can find the defendant guilty of either of the offenses charged, you must be satisfied beyond a reasonable doubt from the evidence in this case that the use of force by (him/her) against __________ (name of victim), if such force was so used, was not privileged under the law of self-defense as it has been defined for you.]

    If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant operated or handled a firearm in manner constituting criminal negligence, and that such criminal negligence on the part of the defendant caused bodily harm to __________ (name of victim) and that the defendant's act was not privileged under the law of self-defense as it has been defined for you, you should find the defendant guilty.

    If you are not so satisfied, you must find the defendant not guilty.

See generally NCJIC Chapter 92: Homicide.

See NCJIC 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].

See NCJIC 253.4.1 [Self Defense: Miscellaneous Issues].

See NCJIC 253.4.1.9 [Self Defense: When Defendant Does Not Intend To Kill].

See NCJIC 255.4 [Self Defense, Partial Or Imperfect].