{ "id": 8520378, "name": "STATE OF NORTH CAROLINA v. JULE W. THOMAS, JR., PAMELA SCHUFFERT, SHEILA HIGGINS, MARY E. MAYHEW, TERRY W. TURNER, COLIN HUDSON, HELEN L. GORDON, CHARLES ERIK ANDREWS, ALAN D. BRAGWELL", "name_abbreviation": "State v. Thomas", "decision_date": "1991-06-18", "docket_number": "No. 9028SC744", "first_page": "264", "last_page": "268", "citations": [ { "type": "official", "cite": "103 N.C. App. 264" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 14-45.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-159.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "914 F.2d 582", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10535795 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/f2d/914/0582-01" ] }, { "cite": "406 A.2d 1291", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8042919 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/a2d/406/1291-01" ] }, { "cite": "25 S.E. 862", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1896, "pin_cites": [ { "page": "862" } ], "opinion_index": 0 }, { "cite": "119 N.C. 814", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656334 ], "weight": 2, "year": 1896, "pin_cites": [ { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/nc/119/0814-01" ] }, { "cite": "12 S.E. 605", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "107 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274877 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/107/0748-01" ] }, { "cite": "2 S.E. 755", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1886, "opinion_index": 0 }, { "cite": "98 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275616 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/nc/98/0619-01" ] }, { "cite": "13 S.E. 940", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1891, "pin_cites": [ { "page": "941", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "109 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651671 ], "weight": 2, "year": 1891, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/nc/109/0802-01" ] }, { "cite": "72 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692596, 8692724 ], "weight": 3, "year": 1873, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/72/0253-01", "/nc/72/0253-02" ] }, { "cite": "351 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "820", "parenthetical": "quoting Black's Law Dictionary 929 (rev. 5th ed. 1979)" }, { "page": "820" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12167639 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "110", "parenthetical": "quoting Black's Law Dictionary 929 (rev. 5th ed. 1979)" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0107-01" ] } ], "analysis": { "cardinality": 619, "char_count": 9619, "ocr_confidence": 0.758, "pagerank": { "raw": 2.9456913995080737e-07, "percentile": 0.848452361508335 }, "sha256": "cfa14ba42bb4b4411c7b56106150f633ade6d4a51a2d58ce39ffa0bbfc06aea1", "simhash": "1:e15c8260ff27bcc5", "word_count": 1611 }, "last_updated": "2023-07-14T17:27:13.805826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JULE W. THOMAS, JR., PAMELA SCHUFFERT, SHEILA HIGGINS, MARY E. MAYHEW, TERRY W. TURNER, COLIN HUDSON, HELEN L. GORDON, CHARLES ERIK ANDREWS, ALAN D. BRAGWELL" ], "opinions": [ { "text": "WYNN, Judge.\nOn the morning of 22 July 1990, the defendants, along with others, staged a \u201csit-in\u201d on the premises of the Western Carolina Medical Clinic in Buncombe County, North Carolina. The clinic offers complete gynecological services to women, including abortion services. In spite of conspicuous signs posted on the premises indicating \u201cNo Trespassing, Clinic Patients Only,\u201d the defendants proceeded onto the premises and blocked the entrances to the clinic by sitting in front of them. Shortly thereafter, the clinic\u2019s director, Ms. Joni Ellis, told the defendants and others taking part in the \u201csit-in\u201d that she was authorized by the clinic to demand that they leave the premises. Ellis repeated the demand that they leave eight times. When the defendants failed to leave the premises, they were arrested.\nPrior to trial, each of the defendants stipulated that they were on the premises of the clinic on the day in question and that they remained there after being instructed to leave. However, they denied having possessed criminal intent. In a consolidated trial, each defendant was convicted of violating North Carolina General Statutes section 14-159.13 (second degree trespass). The defendants thereafter filed a joint notice of appeal pursuant to North Carolina Rule of Appellate Procedure 5.\nI\nIn this case, we are called upon to determine whether the defense of \u201cnecessity\u201d is available to individuals who commit the crime of trespass in an effort to \u201csave the lives\u201d of fetuses from abortion. The defendants contend that the trial court committed reversible error by refusing to instruct the jury on the \u201cnecessity\u201d defense and by excluding certain testimony and other evidence which tended to support the defense. Admittedly, this issue is one of first impression in this State. For the reasons which follow, we are constrained to hold that the defense of \u201cnecessity\u201d is inapplicable to the facts of this case.\nUnder the \u201cnecessity\u201d defense, \u201c \u2018[a] person is excused from criminal liability if he acts under a duress of circumstances to protect life or limb or health in a reasonable manner and with no other acceptable choice.\u2019 \u201d State v. Gainey, 84 N.C. App. 107, 110, 351 S.E.2d 819, 820 (1987) (quoting Black\u2019s Law Dictionary 929 (rev. 5th ed. 1979)). The rationale behind the defense is based upon the public policy that \u201cthe law ought to promote the achievement of higher values at the expense of lesser values, and [that] sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.\u201d W. LaFave & A. Scott, Handbook on Criminal Law \u00a7 50, at 382 (1972). \u201c[I]f the harm which will result from compliance with the law is greater than that which will result from violation of it, [a person] is justified in violating it.\u201d Id. at 381.\nIn Gainey, supra, we noted in dicta that \u201cthe defense of necessity has not been considered in North Carolina cases thus far.\u201d 84 N.C. App. at 110, 351 S.E.2d at 820. Upon reexamination of this issue in greater depth, we acknowledge that in fact several early decisions of the North Carolina Supreme Court appear to have recognized \u201cnecessity\u201d as a defense to criminal prosecutions. In State v. Wray, 72 N.C. 253 (1873), a druggist unlawfully sold spirituous liquors for medicinal purposes at the direction of a physician. The Court held that the druggist was not indictable because the liquor was sold \u201cin good faith, and after the exercise of due caution as to its necessity as a medicine.\u201d 72 N.C. at 255. In State v. Brown, 109 N.C. 802, 13 S.E. 940 (1891), the Court pointed out that it was well settled law that where a highway became impassable, a traveler might go extra viam upon the adjacent land without subjecting himself to an action for trespass. \u201cThis extraordinary rule,\u201d Justice Avery wrote, \u201cwas subsequently recognized by the courts of this country, and the right to do with impunity what would ordinarily subject a person to liability in an action for damages, was generally held to rest upon the doctrine of necessity.\u201d 109 N.C. at 803, 13 S.E. at 941 (citations omitted). However, the Court declined to apply the doctrine of necessity in that case where it was shown that the defendant had trespassed for his personal convenience and noted that in previous cases, the Court had limited the application of the \u201cnecessity\u201d defense to instances where \u201ca human being was thereby saved from death or peril, or relieved from severe suffering.\u201d Id. at 806, 13 S.E. at 942 (citing State v. Brayer, 98 N.C. 619, 2 S.E. 755 (1886); see also Randall v. Richmond and Danville R.R., 107 N.C. 748, 12 S.E. 605 (1890); State v. Wray, supra.). In State v. Southern Railway Co., 119 N.C. 814, 25 S.E. 862 (1896), the Court reviewed the defendant\u2019s conviction for violating a statute which prohibited the running of a train after 9:00 a.m. on Sundays, and stated: \u201cIf the defense relied upon was that it was necessary to run after the hour fixed as the limit by statute in order to preserve the health or to save the lives of the crew ... , or relieve them from suffering, it was incumbent on the defendant to show to the satisfaction of the jury that the act was done under the stress of such necessity in order to excuse it as not in violation of the spirit though in conflict with the letter of the law.\u201d 119 N.C. at 821, 25 S.E. at 862.\nInasmuch as the defense of \u201cnecessity\u201d has not been expressly abolished in this State, we find that it indeed remains viable; however, we conclude that the requirements for its invocation have not been met under the facts of this case.\nIt is often said that the necessity defense was not intended to excuse criminal activity by those who disagree with the decisions and policies of the lawmaking branches of government. 22 C.J.S. Criminal Law \u00a7 51 (1989). As such, the defense is unavailable where the legislature has acted to preclude the defense by making a clear and deliberate choice regarding the values at issue. Id. at \u00a7 50.\nRecent cases in other jurisdictions follow this line of reasoning. In Gaetano v. United States, 406 A.2d 1291 (D.C. App. 1979), the court was confronted with the same argument presented here\u2014 that because abortion terminates life, one is entitled to go onto the property of the abortion clinic and prevent abortions. The Gaetano court concluded that the \u201cnecessity\u201d defense did not apply, and held that the right to be free from criminal interference prevailed over the trespassers\u2019 illegal actions. In National Organization for Women v. Operation Rescue, 914 F.2d 582 (4th Cir. 1990), the Fourth Circuit affirmed the grant of an injunction which prohibited the defendants in that case from trespassing on the premises of an abortion clinic and reasoned that the activities of the trespassers \u201cin furtherance of their beliefs had crossed the line from persuasion into coercion and operated to deny the exercise of rights protected by law.\u201d 914 F.2d at 585.\nIn . the instant case, the defendants contend that it was \u201cnecessary\u201d for them to commit the crime of trespass in order to avoid the greater \u201cevil\u201d of death by abortion. They argue that by violating the literal terms of N.C. Gen. Stat. \u00a7 14-159.13, they were able to promote a higher value than the value promoted by the trespassing statute.\nIn our opinion, the North Carolina General Assembly has made a \u201cclear and deliberate choice\u201d regarding the competing values at issue by choosing to make those abortions performed in accordance with the provisions of N.C. Gen. Stat. \u00a7 14-45.1 lawful. Since there was no evidence at the defendants\u2019 trial that the clinic was performing or about to perform illegal abortions, it is implicit that the \u201cevil\u201d which the defendants sought to avoid by blocking the clinic\u2019s entrances was nonexistent. The nonexistence of an \u201cevil\u201d to avoid foreclosed the possibility of a defense based upon necessity. Accordingly, we hold that there was no error in the trial court\u2019s refusing to instruct the jury on the defense of necessity.\nII\nWe have examined the defendants\u2019 remaining assignments of error and find them also to be without merit. For the reasons set forth above, we find no error in the defendants\u2019 trial for second degree trespass.\nNo error.\nJudges Phillips and Eagles concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.", "Charles R. Brewer for defendants-appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JULE W. THOMAS, JR., PAMELA SCHUFFERT, SHEILA HIGGINS, MARY E. MAYHEW, TERRY W. TURNER, COLIN HUDSON, HELEN L. GORDON, CHARLES ERIK ANDREWS, ALAN D. BRAGWELL\nNo. 9028SC744\n(Filed 18 June 1991)\nCriminal Law \u00a7 34 (NCI4th)\u2014 trespass at abortion clinic \u2014defense of necessity \u2014requirements not met\nThe trial court did not err in a prosecution arising from a sit-in at a clinic offering abortions by refusing to instruct the jury on the defense of necessity. While the defense of necessity remains viable, it is unavailable where the legislature has acted to preclude the defense by making a clear and deliberate choice regarding the values at issue. The General Assembly has made a clear and deliberate choice by making abortions performed in accordance with statutory provisions lawful; since there was no evidence that the clinic was performing or was about to perform illegal abortions, the evil which the defendants sought to avoid was nonexistent and the possibility of the defense foreclosed.\nAm Jur 2d, Trespass \u00a7 42.\nAPPEAL by defendants from judgments entered 14 December 1989 in BUNCOMBE County Superior Court by Judge Shirley L. Fulton. Heard in the Court of Appeals 23 January 1991.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Ellen B. Scouten, for the State.\nCharles R. Brewer for defendants-appellants." }, "file_name": "0264-01", "first_page_order": 294, "last_page_order": 298 }