Nelson v. State

597 P.2d 977 (Alaska 1979)



There are three essential elements to the necessity defense: 1) the act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; and 3) the harm caused must not have been disproportionate to the harm avoided.


Defendant's truck became bogged down in a marshy area off a highway. After unsuccessfully attempting to free the truck and after waiting hours for assistance, defendant and his companions took a front-end loader and a dump truck from a highway department yard where heavy equipment was parked. While being used by defendant, both the dump truck and the front-end loader sustained considerable damage. A case was filed for reckless destruction of personal property and joyriding. The trial court declined to give the requested instruction on the defense of necessity and convicted defendant. On appeal, defendant argued that the instruction given was erroneous because it allowed the jury to apply an "objective, after-the-fact" test of need and emergency, rather than a "subjective, reasonable man" test. 


Was  the jury properly instructed on the defense of necessity?




The court found that any error in the wording of the instruction was harmless because defendant failed to make out a case for the necessity defense, which could be raised only if defendant's actions, although violative of the law, were necessary to prevent an even greater harm. Here, the "greater harm," was potential damage to defendant's truck and the court found no justification for the appropriation of sophisticated and expensive equipment.

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