§ 22.04 "NECESSITY" AS A DEFENSE TO HOMICIDE

• Jurisdiction: North Carolina

§ 22.04. "Necessity" as a Defense to Homicide⁵⁶

[A] The Issue

Assume for a moment that A, B, and C, are riding in a horse-drawn carriage that is being pursued by a pack of very hungry wolves. If it becomes clear to the passengers that the horse cannot outrun the wolves and that all of them will likely be devoured by the animals, may A push B out of the carriage, so that the wolves devour him, thereby saving the lives of A and C?⁵⁷

All right, now suppose that D, a surgeon, wants to save the lives of five critically ill patients, one of whom needs a new heart, two of whom each need a healthy lung, and two of whom require a kidney transplant to survive. Each of his patients is likely to die within 24 hours without the needed operation. Along comes E, who possesses two good lungs, two good kidneys, and a very healthy heart. Amazingly, E has the proper blood type and tissue-match to serve as an organ donor for all of D's patients. May D harvest E's organs, on the ground that he has saved five people at the expense of just one?⁵⁸

Now consider the tragic British case of conjoined infant twins, Jodie and Mary.⁵⁹ Jodie, the stronger twin, provided oxygenated blood to her own body and sister Mary through a shared artery. According to their doctors, Jodie's heart could not continue to support both bodies for longer than a few more months, at which time both would certainly die; if the twins were surgically separated, however, Jodie could live a full life, but Mary would die immediately. Thus, without surgery, two would die; with surgery, one would die. The parents opposed surgically separating the twins for religious reasons; the physicians sought and secured judicial authorization to conduct the surgery. As expected, Mary died. Jodie survived and is living a relatively normal life.

Finally, what if the government had realized on September 11, 2001, that one of the hijacked planes was going to crash into one of the Twin Towers in New York City, ultimately taking the lives of more than 1,000 persons. Would the government have been justified in shooting down the plane, thereby killing hundreds of innocent passengers?

Each of these hypotheticals seemingly raises the same issue: Assuming that all of the requirements for a necessity defense are otherwise satisfied, may a person justifiably kill an innocent person—or more than one innocent person—in order to save a greater number of innocent lives? Fortunately, this issue rarely arises. The most celebrated criminal case involved a lifeboat containing four hungry individuals.

[B] Regina v. Dudley and Stephens⁶⁰

Three adult seamen and a 17-year-old youth were forced to survive on an open boat after their sailing vessel sank. After 20 days on the boat, the last nine days of which were without food, and the last seven of which were without water, the seamen were exceedingly weak. The boy was seriously ill, as well, from drinking seawater. As a consequence, two of the men, D and S, killed V, the youth, in order for the survivors to eat his flesh.⁶¹ Four days later, the three survivors were discovered and saved. D and S were prosecuted for V's murder. They raised the defense of necessity, arguing that they reasonably believed (and the jury so found) that, had they not killed V, all of the occupants of the boat probably would have perished.

Their defense claim was rejected. Lord Coleridge, describing the argument as "new and strange," canvassed common law authority, and concluded that no decided case or scholar, with one possible exception,⁶² supported the claim that "in order to save your own life you may lawfully take the life of another, when that other is neither attempting nor threatening [to take] yours, nor is guilty of any illegal act whatever toward you or any one else."

Lord Coleridge stated that, although "preserv[ing] one's life is generally speaking a duty, . . . it may be the plainest and highest duty to sacrifice it. . . . [I]t is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow." Although Coleridge conceded that the principle he was espousing was harsh, he remarked that "[w]e are often compelled to set up standards that we cannot reach ourselves, and to lay down...