I am reporting this case only because it is available and may be useful to some people who perform protective or public service, and to anyone faced with a problem which could save life or limb but expose you.
Example, one of your best friends is as drunk as a skunk and after your constant pleading for his car keys, he bolts for the parking lot. You tackle him and take away his keys but his arm is broken in the struggle. He is so drunk he can only curse you and accuse you of assault. LEO on the scene charges you with assault and battery.
Here is the case and followed by another scenario:
A defendant who was convicted of assault and battery before a six-person jury, in Fitchburg District Court, appealed on the ground that he was entitled to instructions to the jury on the law of the defense of necessity.
A six person jury in Fitchburg District Court found the defendant Casey O’Kane, guilty of assault and battery on his girlfriend, April Lepage. He appeals from the conviction.
Defendant’s defense at the trial argued lack of criminal intent, that what the Commonwealth characterized as his intention to punch April in the face was in fact his slapping her cheeks in an attempt to bring her to consciousness from what he took to be an overdose of drugs. The jury by its verdict rejected the defendant’s version. The defendant at the trial had not requested an instruction on the defense of necessity. which in some narrow circumstances allows a person to commit a breach of the law in order to respond to an exigent danger. Defendant argues. that his oversight should be given and that he should be accorded a new trial to avert as he says “a substantial risk of miscarriage of justice’ and cites the case of Commonwealth v. Freeman 352 Mass. 726.
The appeals court replied “the necessity defense is available only under very limited circumstances (per Liacos, J dissenting in another cited Massachusetts case.. The appeals court further says the Supreme Judicial Court, described these circumstances in terms of the following three essentials, each of which must be satisfied in order to achieve the defense: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger.
The court went on to say that (citing a case) we are taught that a judge should instruct the jury on necessity only if the defendant has presented some evidence on each element of the defense. In other words the instruction should not be given unless the evidence supports at least a reasonable doubt whether the crime was justified was justified by necessity..
The court further went on to say in effect that there was a failure to meet the test in this case and that his action of slapping her face based on what he believed was her ingestion of Xanax was better met by calling 911 or running to the Police Station which was about a block away
The facts which went before the jury included pictures of her bruised face. The court went into great detail of failure to establish a genuine defense on the known facts and that his defense was a home spun defense was all without merit, that no miscarriage of justice had occurred and that the strict adherence to the tests. No new trial was ordered.
The defense by necessity issue is certainly not new; the reason I reported it is make all aware that such a defense is available if the strict standards are met.
I will supply one scenario where this defense might exist, perhaps some of you may do a better job.
Joe Karateka is at a concert where his job is security and to protect the vocal artist on the stage.
In his duties of observing the crowd, and as the vocalist is on the stage ready to perform, Joe sees the glitter of a gun barrel, shouts “Gun!” and tackles the performer just a split second before the gun goes off. No persons are hit by the round, but the vocalist is injured.
The alleged assassin is apprehended. He was a 12 year old with an air rifle. Joe is charged with assault and battery.