CASE BRIEF

Case Name: State v. Cole, 304 S.C. 47, 403 S.E.2d 117 (1991)
Facts: Roger Wayne Cole, the defendant in this case was arrested for driving on a suspended
license. The defendant claims that his emergency situation justified his driving. His six months
pregnant wife was suffering from back and stomach pains and needed help. The defendant did
not have a telephone so he went to his only neighbors home who did not answer the door. This
led him to drive to a public telephone, a mile and a half away to call his mother in law so that she
can take his wife to the hospital, upon returning from where he was stopped for a broken
taillight, and then arrested because of a suspended license.
Procedural History: The defendant was convicted in South Carolina state court and argued
that his driving on a suspended license was justified because of a family emergency. The
defendant appeals his conviction on the basis that the Judge should have charged the jury with
the defense of necessity. To support his claim, the defendant sites three previous cases where
the defense of necessity was considered.
Issue: Did the trial court err in failing to allow the jury to consider a defense of necessity in the
case where the defendant drove a vehicle on a suspended license to seek help for his pregnant
wife?
Holding (and Judgement): Yes, the trial court err in failing to allow the jury to consider a
necessity defense. The conviction of the appellant was Reversed and Remanded on the
grounds that the Court recognized the defense of necessity in the prison escape context.
Rule(s) of Law applied: In this case three previous cases were sited. First two cases, namely,
State v. Henderson, 298 S.C. 331, 380 S.E.2d 817 (1989) and State v. Worley, 265 S.C. 551,
220 S.E.2d 242 (1975) were sited to show to prior instances of necessity of defense. A third
case was sited, State v. Robinson, 294 S.C. 120, 121-122, 363 S.E.2d 104, 104 (1987), to refer
to circumstances under which criminal act could be excused.
Courts Reasoning: The rationale behind the defense of necessity is that a person should not
be criminally accountable if he engages in illegal conduct to avoid a greater harm. The public
policy mandates extending prior decisions regarding necessity to defense cases to a case
where the defendant is accused of driving under a suspended license.
In order to prove necessity in this context, the defendant was required to show that: 1) there is a
present imminent emergency arising without fault on the part of the actor concerned; 2) the
emergency is of such a nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act is not done; and 3) there is no other reasonable alternative, other than

committing the crime, to avoid the threat of harm. Since, all these three criteria were
satisfactorily met, the conviction was Reversed and Remanded.
Additional Case Opinions: LITTLE JOHN, Acting Associate Justice, dissenting:
A) Defending an accused person by referring to terms like competing harms or choice of evils
not only enables an accused person to weigh possible harms to himself or others against the
possible harms brought about by violating the law, but also make an additional defense available
to thousands of persons whose licenses are suspended every year, creating additional problems
for law enforcement people in administering justice. Hence, the majority opinion creates more
problems than it solves.
B) Legislature would have created an exception if it had foreseen the circumstances faced by
the defendant and, until and unless that happens, the newly created doctrine will not be
extended.
C) Disagree that the public policy mandates extending prior decisions regarding necessity to
defense cases to a case where the defendant is accused of driving under a suspended license.
C) There is a strong likelihood of a person driving on a suspended license not having an
insurance that will subject the traveling public to damages with no available compensation.
Comments/Questions: I personally disagree with the Courts decision because the defendant
seemed to have a history with disobeying traffic laws, known by the fact that he was initially
stopped for having a broken taillight which itself is a threat to ones safety and to others as well.
Therefore, even though the defendant drove to a telephone booth located only one and a half
mile away, it was night time, his license was suspended which means he may or may not have
insurance and his taillight was broken. This was a high risk situation in many ways.
I believe that this case was assigned to us at this point because it refers to a case that we
previously covered, and this would enable us to compare and contrast their common points and
differences. Additionally, even though the term defense of necessity may be common to both
the cases, the required criteria for their application varies. This makes me look forward to future
cases with necessity defense and in how many other ways can this condition be applied to
them.