*1 principle applicable This same would be case where the defendant advantage hybrid rep-
had the additional
resentation the assistance of counsel the trial.
during
Point is denied.
We commend Mr. Thomas B. Curtis and represented
Mr. Kenneth M. who Romines
the defendant on appointment appeal. scholarly attorneys
These filed a brief and argued
earnestly appeal. judgment is affirmed. SIMON, JJ., concur.
GUNN LOUIS, Missouri,
CITY OF ST.
Plaintiff-Respondent, KLOCKER, Defendant-Appellant.
Jean LOUIS, Missouri,
CITY OF ST.
Plaintiff-Respondent, KOTERSKI, Joseph Defendant-Appellant. Mur- F. Puzder and E. Michael Andrew LOUIS, Missouri, CITY OF ST. Louis, defendants-appellants. for phy, St. Plaintiff-Respondent, Hanlon, Stephen J. J. Kovac Edward Counselors, Louis, plain- Asst. St. City ANDREWS, Defendant-Appellant. Miriam tiff-respondent.
Nos. 44079. SATZ, Judge. Appeals, Missouri Court of District, Eastern Louis, charged Plaintiff, City St. Division Four. trespass, a violation of defendants with 795.010, St. Revised Code of June without a trial to court Louis. After Rehearing Motion for and/or Transfer and fined jury, were convicted Denied July issue is appeal, each.1 On the sole $50.00 Application Transfer Denied granting court whether the trial erred Sept. de- to exclude plaintiffs motion limine fendants’ evidence affirm find no error of the trial court. judgment record, appeals separate appears case. The 1. From the that defendants consolidated separate cases and tried in one *2 cause, In this the undisputed. facts are contend their defense of necessity prop- morning 5,1980, On the April and, of defendants therefore, er contend the trial court went to the offices of Reproductive Health granting plaintiff’s erred in motion in li- (RHS), Services an abortion clinic in the mine. disagree. City of St. Louis. Defendants entered the is a Necessity long-recognized by just RHS offices facility as that was open- the type common law of ing. Defendants intended to the It is a defense which “is often defense. abortions scheduled to performed expressed in terms of choice of evils: day. end, Toward that defendants at- pressure the of circumstances [w]hen tempted to dissuade patients abortion evils, presents one with a choice of the law abortions, having by advising patients those prefers greater that he avoid the evil about physical the and psychological dan- about the lesser evil.” LaFave bringing gers of abortion. When it became apparent Scott, Law, and 50 at to defendants that their efforts at persua- Thus, conduct which otherwise would be a sion had failed patients and that the were justified crime is and not criminal if the about to enter the abortion facility, defend- is, conduct pressure the of circum- ants blocked access to the proce- abortion stances, the lesser of two evils. Ar- See dure rooms sitting in the doorway to Garland, nolds and The Defense of Necessi- those rooms. Defendants were then re- ty in Criminal Law: Right The to Choose quested by agents of to RHS leave the Evil, the Lesser Criminology J.Crim.L. & premises. Defendants refused to do so. Police officers for the of Louis St. scene, called to the and the officers The defense poorly of has been placed defendants under arrest. Defend- developed in our jurisprudence. Ne- ants refused to assist in moving themselves cessity as a Defense to a of Crimi- premises, off the were, and therefore, lifted na] Clinic, Trespass an Abortion 48 Univ. and carried off premises the by police offi- Cinn.L.Rev. Arnolds & cers. Garland, supra Nonetheless, at 291. the usually distilled into three essen-
Subsequently, defendants were charged “(1) tial elements: the act trespassing in violation of 795.010 of the have been done to prevent significant Revised Code of the City of St. Louis (1961).2 [harm]; (2) there trial, At must have been no ade- defendants raised the de- alternative; quate fense of harm caused More specifically, de- must not fendants claimed have been disproportionate that their actions of tres- pass were harm necessary Municipality avoided.” Cleveland v. save the lives of the unborn of Anchorage, (Alaska fetuses 631 P.2d scheduled to be aborted. responded 1981); Garland, Plaintiff limine, with a Arnolds & at 294. supra motion in requesting the The prohibit court to first two are elements factual determi- defendants from offering any evidence nations be satisfied the de- the necessity defense. The trial court fendant’s reasonable belief. Townsend v. granted plaintiff’s States, motion in limine. (D.C.Cir. After United 95 F.2d facts, trial to the court upon stipulated 1938); Ashton, de- United States v. 24 F.Cas. fendants were convicted trespassing (No. 14,470) and (C.C.D.Mass.1834). fined each. On appeal, $50.00 The third factor is a value determination. three ap- being upon another, defendants were consolidated in the land of shall fail [or] peal. requested refuse to leave the same when so person lawfully possession to do 2. This section reads: thereof, agent representative; his or or de- another, person, posit premises “No authority, on the without lawful or remove express therefrom, material, earth, implied any substance, without consent of the agent, dirt, ashes, refuse, owner any building or his shall enter turf or other article or improved or enter on thing inclosed or real whatsoever.” estate, parcel ground or, City; lot or in the “is of injury” injury such necessarily belief is not defendant’s ordinary stan- controlling. according La- certainly gravity
relevant and the de- accepted morality, intelligence Fave and at 386. The dards outweighs relative society avoiding norms of sirability determine harmfulness of the desirability two alternatives defense is allowed if done *3 the “harm the statute defin- sought prevented by to be choosing alternative the one charged.” defendant crime 563.026.1 RSMo ing the § was than the would have Thus, less harm which pursued the conduct 1978.3 criminal been done if he had chosen the other.” to avoid an pursued a defendant be by Scott, supra LaFave and at 386. or With- public private injury.” “imminent justifi- is no injury, a threatened there out the had Traditionally, harm to be avoided cation for defendant’s otherwise by caused the forces of “physical to be conduct. (storms, than privations) nature rather other human LaFave and beings.” injury by the avoided Defendants contend has supra requirement at 381. This “killing of human their conduct the necessity been relaxed and the defense of fetuses. the abortion of unborn by life” encompass harm human be- may by caused contend specifically, More See, ings. e.g., People Lovercamp, constitutes of an abortion performance the Cal.App.3d Cal.Rptr. the mean- within private injury, or public Prosser, (4th see Torts 24 at 124 ed. also § agree. the statute. We cannot ing of However, 1971). if is necessity the defense hu- created harm threatened here was threats, include it has expanded to forces by physical rather than beings man suggested been that the is limit- expansion then, noted, under Arguably, as of nature. illegal. to those human which are ed threats this principles, common law one view of Note, Necessity Charge as a to a Defense if the illegal harm had to be threatened Clinic, Trespass in an Abortion triggered. of defense were to be necessity supra at 513. to a See, Necessity as a Defense in an Abortion Trespass of Criminal Missouri, In necessity the defense of Clinic, interpreta- supra at 513. This an been codified as affirmative defense. aside, the law principles tion of common 563.026 evidence RSMo Whenever § harm to require statute does the threatened offered, relating to the is necessity defense injury public private be an imminent or the court must rule of law “as a matter trig- can be necessity before- the whether the claimed facts and circumstanc- injury, would, Normally, public private or established, justifi- gered. if es constitute being, presuppos- aby when caused cation.” 563.026.2 1978. Conduct RSMo § right. of some justifi- which would otherwise a crime is es the actionable invasion be occurs in emergency rights “when it is necessary able as an No actionable invasion Therefore, the public measure to avoid an or legally protected activity. imminent defining prevented the statute 563.026 RSMo reads: charged. crime provi- “1. Unless inconsistent other necessity justifiability of con- 2. The chapter defining justifiable of this use sions upon not rest duct subsection force, physical provi- or with some other only pertaining morali- considerations law, sion of conduct otherwise which would advisability ty in its either A constitute crime other than a class ap- respect general application to its or with justifiable felony or murder is and not crimi- arising particular plication or cases to a class emergency necessary nal when it is an relating to thereunder. Whenever evidence public pri- avoid an measure to imminent or justification section under this injury the defense which is vate about to occur reason offered, matter of rule as a developed is court shall situation of a occasioned actor, and circum- through law whether facts is of no fault of the and which claimed would, established, gravity ordinary if constitute according stances such stan- to justification. intelligence morality, dards of the desira- bility avoiding injury outweighs under this 3. The defense desirability sought is an section affirmative defense.” Clinic, statutory Trespass inal in an Abortion at terminology- public —a not contemplate legally pro —would Moreover, tected activity. whatever con must fail for Finally, defendants’ claim struction is placed upon terminology, another reason. The conduct in no sensible construction permit would justifiable only as a if it is not terminology legally to include protected hu provision “inconsistent ... with some other man activity, protected activity, in the of law.” 1978. This lan- sense, causes no injury. In Roe v. guage simply legislature’s means that 113, 153, prevails spe- decision if and when it makes (1973), L.Ed.2d 147 Supreme Court of Thus, “competing cific value choices. val- United States that a wom ues have been foreclosed deliber- an’s decision to abort her pregnancy pro ate choice are excluded from the legislative tected her right privac constitutional as when general justification, y.4 abortions, Since like those in issue *4 explicitly specific the law has dealt with the here, are constitutionally protected activity evils.” situations that a choice of and, therefore, legal, their occurrence can 563.026, Proposed Comment to 1973 Code. public be a injury. Peo See Stiso, legislature judg- Our has made its value ple v. 101, 93 Ill.App.3d 48 Ill.Dec. 687, 689, 1209, 1211 416 N.E.2d ment area and concluded the this Peo ple Krizka, 288, v. Ill.App.3d 92 48 Ill.Dec. interests defendants seek to vindicate are 36, Thus, 416 N.E.2d 37 outweighed defend- right privacy defendants rely cannot on the statutory de ants crystal seek to invade. This is made fense of necessity. legislative clear proviso:
The trial court could have reached the
general
“It is the intention of the
as-
same result by different
reasoning.
It
of Missouri to reason-
sembly
State
found,
could have
law,
as a matter of
that
abortions in conformance
ably regulate
defendant did not choose the lesser harm
with
Supreme
the decisions of our
Court
under the dictates of the statute. Again,
of the United
States.”
this reasoning depends on the
legality
abortion. Abortion can be construed “as
Thus, defendants’ claim to the defense of
the taking of life or
as the
termina-
since
is incon-
necessity must fail
this claim
tion of pregnancy.” Note, Necessity as a
sistent with
of law.
provisions
other
See
Defense to a Charge of
Trespass,
Cleveland Municipality Anchorage,
v.
supra at 514. Defendants here believe the
(Alaska 1981).
P.2d
characterization;
former
courts,
our
cir-
Apparently,
attempt
the present
law,
status of the
accept
Wade, supra,
cumvent the effect of Roe v.
the latter.
Id. at
Wade,
514. Under Roe v.
that
arguing
they reasonably believed
supra,
potential
of life in an unborn
they
acted to
destruction
fetus is not entitled to legal protection be-
open
life and Roe v. Wade left
fore viability,
Wade,
Roe v.
supra 410 U.S.
begins.
when human life
Defend-
163,
at
Thus,
at
S.Ct.
legally,
they
per-
ants conclude
should have been
procedure
abortion
is untainted. Balancing
begins
mitted to elicit evidence to show life
this legally untainted “harm” of abortion
against
conception.
at
We believe the short answer
trespass, the trial court could have
sensibly
given
People
to a similar contention
law,
concluded
as a matter of
Krizka,
“the trespass
supra,
adopt
is correct and we
interferes with a funda-
right
288,48
mental
greater
is the
Ill.App.3d
harm.”
here: L.C. 92
Ill.Dec. 142-
Necessity as a
143,
Defense to a
of Crim-
N.E.2d 37-38
During
however,
pregnancy,
right,
qualified during
the first three
This
months of
the later
physician may
163-164,
woman
stages
pregnancy.
and her
Id. at
decide on an
abortion free of
interference
the state.
at 731-732.
Wade,
163,
Roe v.
at
“True,
Roe,
uisites before the defense
acknowledged
the Court
long
common
competing
regard-
the existence of
views
be utilized. This
situations
which life
law1
in certain
absolves
ing
point
begins.
at
How-
liability in
“criminal
ever,
posi-
declined to
a defendant
adopt
Court
city ordinance)
(note here
with
begins
conception, giving
tion that life
at
we deal
certainly
a limit-
recognition
right
instead to the
of a wom-
violation.” The defense
in our criminal
an to make her own
ed one and is now embodied
abortion decision
(1978). The
code.
563.026 RSMo
during the first
trimester.
at
Section
410 U.S.
162,
posed
person
case is whether
SMITH,
J.,
Numerous and
P.
concurs.
begins
life
at
indicated that human
PUDLOWSKI, J., dissents.
Supreme
conception.
moment of
PUDLOWSKI, Judge, dissenting.
in Roe
of the United States
35 L.Ed.2d
S.Ct.
perhaps
One
should be
cir-
particularly
“the
to address
difficult
refused
cumspect
solitary
when he finds himself in
the scientific view that
question” despite
dissent.
Commissioner
“Americans Unit-
*5
The whole
that moment.
life commences at
ed”,
2053,
Inc., 416 U.S.
society has but
history of Judeo-Christian
2059,
(1974) (dissenting opin-
The when it defense of are principle justification correct Q.B. 273 req- certain important Dudley Stephens, states that there are and 3.See, Nathanson, Abortion, Deeper Legibus, (Twiss into in 2 De f. Bracton 121 at 1379). Eng.J. (1974); ed. Le New Jeune and of Med. 1189 Thomas, Lily, (1977); In- The Humans Tiniest ‘necessity’ and are “The doctrine of ‘coercion’ Embryology (1968); troduction to Human impotence against man’s tacit admission of Embryology, Langman, Human Devel- Medical him, greatest evils that as some of the assail Abnormal, opment —Normal obligation well as a measure of his moral even Moore, Born, Embryology Basic Before We Are Hall, Principles in extremes.” General of Crim- Defects, (1974). and Birth Law, p. inal Second Edition Holmes, Fed.Cas., my whole dissent is based 360 No. thrust (E.D.Pa.1842). accepted legal principle not on the only There the justification dealing with responsibility absolved from criminal law necessity but is based on the common because a life or lives were taken in order hu- sanctity uniqueness view of the to save others. recognize These cases man life which is embodied in succinctly sanctity of human life and did not authorize Shakespeare: life, the taking of another’s even to save the piece “What a of work is a man! How lives of the defendant. But we deal here faculty! noble in reason! How infinite in with a separate and monumental issue. form, In and ad- moving, express how Trespass, while it is an infraction and can- mirable! In action how like an angel, condoned, not be not as obviously serious apprehension how like a The beau- god! taking as the of life as in Dudley and world, ty paragon of ani- Stephens and Holmes. The act mals.” (trespass) was appellants done as contend to significant Therefore, (the taking judgment harm reverse the I would life). circumstances, plenary Under the and remand for a trial to afford the record, opportunity disclosed defendants an by the there was no other recognized penal law alternative, and common elements and the (obstruc- harm caused of their justification defense of tion of the doorways) was not disporpor- tionate to avoided, (the the harm taking of
an innocent, life).
No matter that the Supreme
authorized abortion on demand. The court
did not address the issue of the commence-
ment of life. Roe v. supra. Our drawn from the Model Penal Missouri, Respondent, STATE of
Code, authorizes the defense *6 when “it is necessary as an emergency
measure to avoid an imminent ... TELFAIR, Appellant. L. W. injury which is about to occur ... which is No. 44194. of such gravity that ... the desirability of outweighs the desirabil- Missouri of Appeals, ity of avoiding the sought District, Eastern prevented by the (ordinance) statute defin- Division Three. ing the crime charged.” In my opinion the June action of the defendants fall within the Motion Transfer Rehearing and/or meaning spirit of our July Denied (1978), supra. defendants, under the circumstances here, are entitled under our criminal code to
introduce evidence on this valid issue of
justification of necessity. Their action falls
within the area of many decisions of the law, (See
common LaFave 50. p. & Hall, Force, George and Procedure, Ed.,
Law p. 553) 3rd ch.
within provisions code
adopted by legislature in 1979. Hamlet, II, Act Sc. II.