N.C.P.I.—Crim. 310.12

NOTE WELL: The trial judge is reminded that this

instruction must be combined with the substantive

offense instruction in the following manner: (1) the jury

should be instructed on the elements of the charged

offense; (2) the jury should then be instructed on the

definition of necessity set out in this instruction below;

(3) the jury should be instructed on the mandate for

necessity as set out below in this instruction; and (4)

the jury should then be instructed on the mandate of

the charged offense. The failure to charge on all of

these matters constitutes reversible error.

There is evidence in this case tending to show that the defendant

acted only because of necessity. The burden of proving necessity is on the

defendant.2 It need not be proved beyond a reasonable doubt, but only to

your satisfaction. The defendant would not be guilty of [crime charged] if

the defendant proves to your satisfaction the following three things:

First, the action of the defendant was reasonable.

Second, the action was taken to protect the life, limb, or health of

the defendant (or of some other person).

And Third, there were no other acceptable choices available to the

defendant.3

The defendant's assertion of necessity is a denial that the defendant

has committed any crime. The burden remains on the State to prove the

defendant's guilt beyond a reasonable doubt.4

NECESSITY MANDATE

If the defendant has proven to your satisfaction that the defendant

(describe action of the defendant) at the time of the alleged offense

because of necessity, you will not consider this case further and it would

be your duty to return a verdict of not guilty.

However, if you do not so find, then you must decide if the

defendant is guilty of (name offense). If you find from the evidence

beyond a reasonable doubt that on or about the alleged date, the

defendant (give final mandate for offense charged).