People v. Unger

66 Ill. 2d 333, 5 Ill. Dec. 848, 362 N.E.2d 319 (1977)



Conditions that are relevant factors to be used in assessing claims of necessity are: (1) the prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and (5) the prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. The existence of each condition is not, as a matter of law, necessary to establish a meritorious necessity defense. The conditions are matters which go to the weight and credibility of the defendant's testimony. A court will not weigh the evidence where the question is whether an instruction is justified. The absence of one or more of the elements listed does not necessarily mandate a finding that the defendant cannot assert the defense of necessity.


A man was confined at the Illinois State Penitentiary in Joliet, Illinois. He was ransferred to the prison's minimum security, honor farm and one day walked off the honor farm. Two days later, he was apprehended in a motel room in St. Charles, Illinois and charged with escape. At trial, he testified that he had been threatened by a fellow inmate. The inmate brandished a knife in an attempt to force defendant to engage in homosexual activities. At the honor farm, he was assaulted and sexually molested by three inmates. Five days after the assault, it was believed that he reported the assault to authorities and he felt threatened. Defendant claimed he left the honor farm to save his life and planned to return once he found someone that could help him. The trial court instructed the jury to disregard defendant's reasons for escape and refused to instruct the jury on the statutory defenses of compulsion and necessity. He was convicted. The appellate court reversed the conviction and remanded for a new trial, holding that the instruction was reversible error. The case was appealed to the Supreme Court of Illinois.


Was the jury correctly instructed?




The Court held that the defendant was entitled to submit his defense of necessity to the jury.  When a defendant raises an affirmative defense, he must present "some evidence" thereon. Therefore, if the defenses asserted are available to the defendant, he is entitled to an instruction on these theories if "some evidence" was introduced to support them.

Click here to view the full text case and earn your Daily Research Points.