Nelson v. State

597 P.2d 977 (1979)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Nelson (D) was having a bad night when he drove his four-wheel drive truck off the highway and got stuck on a marshy area at midnight. D was afraid that the truck would tip over in the marsh. D tried to free the vehicle and then decided to get help. An acquaintance picked him up and took him to the Highway Department Yard. There were no trespassing signs all around, but after waiting several hours, D decided to take a dump truck. The dump truck got stuck. At 10:00 that morning another person who was stuck offered to assist D. They returned to the yard and got a front-end loader and freed the dump truck and then got the other person’s car out. The dump truck was returned to the yard, and D then tried to use the loader to get his truck out. They stopped and went to sleep and eventually were put under citizen’s arrest by a Highway Department employee. D was convicted of reckless destruction of property and joyriding. D appealed based on the instruction given by the trial court related to necessity. The trial court gave the instruction but said “it was only available when natural forces created a situation wherein it becomes necessary for a person to violate the law in order to avoid a greater evil to his property. The harm to be avoided must be greater, and it must be immediate and dire. If a reasonable alternative other than violating the law is available, the defense of necessity is not applicable.”