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necessity i.e., when the life of
one person can be saved only by the sacrifice of another, will be discussed in
a subsequent chapter. The issue, it should be observed, is not simply whether a
particular life is to be sacrificed in case of necessity, but whether it is
right for a person to commit a crime in order to save his life. The canon law
prescribes that a person whose life is dependent on immediate relief may set up
such necessity as a defense to a prosecution for illegally seizing such relief.
To the same general effect speak high English and American authorities. Life,
however, can usually only be taken, under the plea of necessity, when necessary
for the preservation of the life of the party setting up the plea, or the
preservation of the lives of relatives in the first
degree.” |
As the prosecution says, most of the cases where this defense has
been under consideration involved such situations as two shipwrecked persons
endeavoring to support themselves on a floating object large enough to support
only one; the throwing of passengers out of an overloaded life boat; or the
participation in crime under the immediate or present threat of death or great
bodily harm. So far as we have been able to ascertain with the limited
facilities at hand, the application to a factual situation such as that
presented in the Nuernberg trials of industrialists is novel.
The plea
of necessity is one in the nature of confession and avoidance. While the burden
of proof is upon the prosecution throughout, it does not have to anticipate and
negative affirmative defenses. The applicable rule is that the prosecution is
compelled to establish every essential element of the crime charged beyond a
reasonable doubt in the first instance. However, if the accused’s defense
“is exclusively one of admission and avoidance, or if he pleads some
substantive or independent matter as a defense which does not constitute an
element of the crime charged, the burden of proving such defense devolves upon
him. As a general rule, in matters of defense, mitigations, excuse, or
justification, the accused is required to prove such circumstances by evidence
sufficient to prove only a reasonable doubt of his guilt. And if the
circumstances relied upon are supported by such proof as produces a reasonable
doubt as to the truth of the charge against the accused when the whole evidence
is considered by the jury, there must be an acquittal”.* The question then
is whether, upon a consideration of the whole evidence, it can be justly said
that there is such a doubt.
The defense of necessity is not identical
with that of self-defense. The principal distinction lies in the legal
principle in- […volved.] |
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* Wharton’s Criminal
Evidence, op. cit. supra, section 211, pages 236 and 237.
1437 |
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