Toops v. State
| Decision Date | 30 November 1994 |
| Docket Number | No. 09A05-9308-CR-00304,09A05-9308-CR-00304 |
| Citation | 643 N.E.2d 387 |
| Parties | Terry TOOPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
The driver of the car in which Terry Toops was a passenger panicked at the sight of police and dove into the back seat. When the car began to careen out of control, Toops grabbed the steering wheel and drove for some distance even though he was intoxicated at the time. Toops was ultimately convicted of Count I--Operating A Vehicle While Intoxicated, Count II--Operating A Vehicle With 10% Or More Of Alcohol In Blood, Count III--Operating A Vehicle While Intoxicated With A Prior Offense Of Operating While Intoxicated, and Count IV--Operating A Vehicle With 10% Or More Alcohol In Blood With A Prior Offense Of Operating A Vehicle While Intoxicated. Toops now appeals raising four issues for our review. However, because one issue is dispositive we address it only: whether the trial court erred in refusing Toops's proposed jury instruction regarding the defense of necessity.
We reverse.
In the late evening hours of October 30, 1992, Terry Toops, Warren Cripe and Ed Raisor were present at Toops's home in Logansport, Indiana drinking beer. Around 3:00 a.m. the following morning the trio decided to drive to a store in town. Because he was intoxicated, Toops agreed to allow Cripe to drive Toops's car. Toops sat in the front passenger seat and Raisor sat in the rear. Toops began to feel ill during the drive and stuck his head out the window for fresh air. In the meantime, Sheriff's Deputy Michael Day and Town Marshall Gary Layer were on routine patrol when they observed a person later identified as Toops hanging out the car window. The officers decided to investigate and made a u-turn to follow the car. Cripe saw the patrol car turn around and panicked because he was a minor and had been drinking. He let go of the steering wheel and jumped into the back seat of the car. The car began to careen out of control, leaving its lane, veering into the northbound lane of traffic then veering back into the southbound lane. Toops finally slid into the driver's seat and brought the car under control.
The officers overtook the car and noted that Toops, whom they had originally seen hanging out of the car window, was now seated behind the steering wheel. The officers also noted that Cripe and Raisor were seated in the back seat of the car. At the officers' request, Toops submitted to a breath test which revealed a BAC of .21%. As a result Toops was arrested and charged with various alcohol related traffic offenses. He was also charged with Criminal Recklessness, Operating a Vehicle Without a Seat Belt, and Driving Left of Center, all of which the State dismissed prior to trial. After a trial by jury Toops was convicted on all remaining counts. This appeal ensued in due course.
At the close of evidence Toops tendered the proposed jury instruction:
The Defendant in this case has raised the defense of "Necessity" to excuse his assuming the controls of the vehicle at a time when he was intoxicated. "Necessity" involves a choice between two admitted evils where other options are unavailable. "Necessity" justifies illegal conduct if that conduct was the sole reasonable alternative available to Defendant given the circumstances of the case.
In this case, the Defendant, Terry Toops, has admitted that he assumed control of the vehicle at a time when he was intoxicated. If you find that the Defendant's illegal conduct was justified by the circumstances, then you should find the Defendant "Not Guilty."
Record at 91. The trial court refused to give the instruction indicating "I cannot find that necessity is a recognized defense in the State of Indiana." Record at 390-91.
The origins of the necessity defense are lost in antiquity. At least one writer advances the notion that it may be traced to the Bible itself, the analogy being the destruction of property to save human lives: "Then the mariners were afraid, and cried every man unto his god, and cast forth the wares that were in the ship into the sea, to lighten it of them." Charles E. Torcia, Wharton's Criminal Law § 90 (15th ed. 1993) quoting Jonah, c. 1, v. 5. In the criminal context the defense of necessity arose in the common law to excuse criminal conduct when a defendant was confronted with two evils and chose to engage in the prohibited conduct because it represented the lesser of the two evils. The underlying rationale is that to impose punishment upon a person who acted reasonably to avoid the greater harm serves neither to rehabilitate that person nor to deter others presented with a similar situation. It has also been observed that John H. Gillett, Gillett On Criminal Law § 7 (2d Ed.1895) quoting Rutherforth's Inst. c. 18, sec. 9.
One of the leading decisions in this country recognizing the defense of necessity in a criminal law context is found in the landmark case of United States v. Holmes, 26 Fed.Cas. 360 (No. 15,383) (C.C.E.D.Pa.1842). In that case a ship sank at sea forcing the survivors to crowd into a leaking lifeboat. The crew decided to throw sixteen passengers overboard to prevent the boat from sinking. Holmes, a crew member who participated in tossing passengers into the sea, was convicted of manslaughter and sentenced to six months' imprisonment. On appeal Holmes argued that his conduct was justified given the choices confronting him. Although rejecting Holmes's argument because the method of determining who was to live or die was not fair, the court nonetheless accepted the principle that committing a harm, even the taking of human life, could sometimes be justified because it avoided the loss of even more lives, which was a greater harm. Id.
The common law defense of necessity has evolved over the years and is often referred to as the "choice of evils" defense. In some jurisdictions the elements of the defense have been given statutory recognition, 1 and in other jurisdictions the elements have been set forth in the case law. 2 Although the confines of the necessity defense vary from jurisdiction to jurisdiction, the central element involves the emergency nature of the situation. That is, under the force of extreme circumstances, conduct that would otherwise constitute a crime is justifiable and not criminal because of the greater harm which the illegal act seeks to prevent.
Neither this court nor our supreme court has had occasion to discuss the parameters or the applicability of the common law necessity defense in a criminal context. However, our supreme court has recognized the existence of the defense. See Walker v. State (1978), 269 Ind. 346, 381 N.E.2d 88 (...
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§ 22.01 Basic Nature of the Defense
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§ 22.01 BASIC NATURE OF THE DEFENSE
...Defense in Federal Criminal Law?, 75 U. Chi. L. Rev. 1259 (2008).[2] . Greenawalt, Note 1, supra, at 288; see also Toops v. State, 643 N.E.2d 387, 388 (Ind. Ct. App. 1994) ("The origins of the necessity defense are lost in antiquity.").[3] . See §§ 23.03, 23.05-.06, infra.[4] . The William ......
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TABLE OF CASES
...2002), 91 Tinskey, People v., 228 N.W.2d 782 (Mich. 1975), 429 Tobin, United States v., 552 F.3d 29 (1st Cir. 2009), 117 Toops v. State, 643 N.E.2d 387 (Ind. Ct. App. 1994), 271 Tot v. United States, 319 U.S. 463 (1943), 79 Townsend v. State, 45 N.E.3d 821. 828 (Ind. App. 2015), 310 Townsen......