§ 6-10 Necessity

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2012 Ed.)

§ 6-10 Necessity

The defendant has raised the defense of necessity.

The defense of necessity covers the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. The rationale behind the defense of necessity is that a person should not be criminally accountable if he engages in illegal conduct to avoid a greater harm.

In order to prove necessity, the defendant must show by a preponderance of the evidence that:

(1) there was a present and imminent emergency which arose without fault on the part of the defendant;

(2) the emergency was of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act was not done;

AND

(3) there was no other reasonable alternative, other than committing the crime, to avoid the threat of harm.

If you find the defendant has proved the defense of necessity by a preponderance of the evidence, you must find the defendant not guilty.

United States v. Bailey, 444 U.S. 394 (1980); State v. Sullivan, 345 S.C. 169, 547 S.E.2d 183 (2001) (applying necessity defense in case involving possession of a pistol); Id. (concluding defendant charged with unlawful possession of a

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