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 Oecsmbar 28, 1976 2253
 against the interest of the government in Nonetheless it mar be argued that the McKey v. United States, 263 A.2d 649 (1970),
 guarciing the health and morris of the general necessity defense, b_eause it negates the defendant appealed from a convi_ion of
 public. Most importantly, the St_pr_me Court mental element of crimma_ty0 cannot shield a possession of implements of a crime in
 _ddressed this question in Roe Vo W_deo 410 defendant charged under a statute which violation of D.C. Code Section 22-3601,
 U.S. 113 (1973} and Doe v. Baleen, 410 U.S. purports to pumsh onl_the act, without any alleging insufficient proof of intent to use the
 179 (1973), canes which attacked the cons_i- specified mental state° Since the phflosopho items for criminal purposes. Affirming the
 tutionality of state statutes restricting abor- icat justification for this defense is the conviction, the court found that while the
 tions. In an opinion which stressed the unfairness and ineffectiveness of pun_h_ng statute prohibits only the p_se_sion of
 fundamental nature of the right of an one who did nat act through the exercise of his instruments generally employed in the com-
 L_dividual to preserve and centres her body, unfettered discretion, its applicability where mission of crime° the government most
 the Court held that abortion cannot tonsil- the offense charged does not involve the v_lfu_ establish not only possession but also intent to
 _utionalty be denied a woman under certain commission of an act is open to question, use illegally° A mental element is implied in a
 circumstances. These dec_ions recognize first According to Section 33-402{a} of the D_tri_ statute despite its apparent imposition of
 _at a woman may at any stage end a of Co_umbLa Cede: criminalpenalties for the mere commission of
 the act° See also Roe#er v. United States, 31_
 pregnancy which threatens her own exist- It shall be unlawful for _y person to man-
 ege, her right to life being more significant u_acture, Pos_ess_ have unaer his control, A.2d 87_} (1974).
 than that of the fetus_ however cMse to term. In other jurisdictions, necessity has been
 The opinions go on to affirm the prerogative of _ell, presccr_be, administer, dispenses or
 compound any narcotic drug, except as au- raised successfully as a defense to statutes
 a woman during the first three months of thorLzed in this chapter._ which contain no element of wilfnLness or
 pregna_cytotern_dnate it for any reason what: voluntariness. In State v. Jack, on, 71 Nell.
 soever, estab_shing that _he may contro_ On Es face, the statute does not admit of any 552, 58 A. 10221 (19_2), defendant appealed
 her body at the expense of the _de of a fetus defenses except _hose which negate the from a conviction for violation of the corn-
 tess than four months old. The significance of allegation that the accused committed the acct. pulsory education law. The statute provided
 these decisions to the instant case lies in _he Liability appears to be absolute, to follow criminal penalties for any parent or guardian
 revelation of how far-reaching is the right of inexorably upon the performance of the who did not send his child to school for
 an individual to preserve his health and bodily proscribed action. The case law, however, designated portions of each year, unless
 integrity, supports aa alternative view.
 In United Sta2e_ v. Weavers 458 F.2d 825° absence was approved by the School Board
 The federal district courts have also dealt after application and hearing, Defendant
 __h this problem. In Stowe v. _ited State_ 148 U_SoApp. D.C. 3 t1972), the United States refused te allow his daughter s attendance_
 _ivii No. 75o0218-B {W.D. Okla., August 14, Court of Appeals interpreted Section _-402
 believing_hat the delicate state of her health
 :_75. plaintiffs alleged that they or their as requiring a particular state of mind, the required_hat she remain at home. The court
 ,V_uses suffered from cancer, and that they absence of words to this effect in the statutory held that the parent's interest in the
 _d been successfully treated with laetrfle, a language notwithstanding° There, defendant preservation of the health of his child was
 ,_ru_ banned by the Food and Drug Admino appealed from conviction of possession of superior to any interest, of the state that its ....
 _ration on the _ound that its effectiveness narcotics in violation of section 33_402, citing future citizens be educated. Recognizing the
 _he treatment of cancer is still in doubt° In the trial court's failure to instruct the jury time required by the administrative process,
 _ unreported interim decision, the court that only a knowing possession was prohib- the court held that the provision for appfica-
 _o_nd _hat the plaintiffs right to medical ited. Finding the jury instructions adequate_ don for permission from the School Board did
 _,a_mem _'ith a substance which had demon- the appellate court affirmed the conviction, _ot offer the accused a significant alternative.
 ,trebly favorable effects on their cancers noting: rhus, the preservation of health was deemed
 ,_,rseded any interest of the government in Although _he statute (D.C. Code Section a valid defense to a statute which contained no
 :,r,_ecting the general public from a drug 33_4_)2] does not contain the term iknow- _quirement of voluntariness, and which
 , _:_e properties were not conclusively inglyL the offense prohibited by the law is appeared to bring criminal sanctions upon the
 ;_r,_ven. Accordingly, _he FDA was enjoined a knowing possession of the drug. _ mere performance of the act. See also S_te v.
 !r_m_reve_t_ng _he plaintiffs from importing Ha//_ 74 Nell. 61, 64 A. 1102 (1906)o In Cr_e Vo
 _.ed quantities of laetrfie for their own use. The communion of the prohibited act without Wyaming_ 370 P.2d 371 (Wyo. 1962}, the
 _ Keene v. United Sta_es, Civil No. the requisite mental _tate is not suffident for necessity defense was successfully rab_ed to
 "_ _r2ioH _S.D.W.Vao, August 17, !976}. commission of the offense. SkrA[arly, in preserve property despite an absolute statu-
 'nder these circomstances, the Court finds ................................... tory prohibition. There the court reversed a
 ',.v, _._i_ defendant does not fal_ within the _ssues raised by the de_end_nt _n his briefs _nd argument. _l, rv¢iction for violation of a statute providing
 :_ hmitafion to the necessity defense. The However, the Court agrees _.h_ a _w which _p_rently penalties for the killing of moose out of season
 _equires an individual t_ sub,nit to deterlorathng heath or without a license. Defendant, who did not
 -,:i _e _ught to avert, blindness, is greater -without proof _ s _ignific_nt public _tterest t_ he protected deny knowiedge of the absolute statutory
 _.a_, _ha_ he performed to aecomp_sh it, raises questions of eons_itutlor_l dimensions. Furthermore.
 _-_g marijuana in his residence in viola- _e CC_urt declines _ address defendant's motion for as b_ff_ admitted killing the animals but intern
 • _. o_ the District of Columbia Code. Wh_e injunction, bv|_eving that it is not ripe for decision at p(>sed the defense of necessity. The moose,
 _,_ was shown by competent medical _resen_. defendant alleged, were harming his land,
 _. This proposition appears in NoW. Cam#m2 L/abi_/tV eating forage necessary _or his cattle, and
 _*t_n_. to be the otherwise inevitable _a_, Fag: A Phflo_,ophic_ Perspe,z.Ave, % C_lum_ L. f_ghtenhzg his family. Under these circum-
 _*_:. ,_[ defendant's disease, no adverse sew. 1517, 1541 (1975). However, the C_urt notes tha_ _o
 o_, _rom the smoking of marijuana have a_hori_y is cited for this _siUo_. stances, the court held, the accused should not
 '_ 't_tra_edo Unlike the situation in 3L This chapter later provides that m_rij_na _y be b_ criminally responsible for his violation of
 obtained on pres_ptinn, but in view ot the to_.l pr_hlbitien the statute° its absolute language notwitho
 ': ._ sad [_,_. an direct harm will be visited o_ mar_j_sn_ possession, _e end use under _eder_l taw, the standing, because the constitutional right of
 -_ _nt third parties: any major ill C_urttakesiuddeialn_tieethat_t_notleg_yobtvAnsb[ein cRizens to defend their lives and prope_y
 _:_'. _ _r_m the inhahtion of marijuana smoke the Distric_ nf C._]_mbia.
 • , "_r to the defendant alone. Further- 32. weave, _ at 4. ca[_not be circumvented by le#slation. For
 ",'_ ,_(er, d_t. by growing marijuana for similar results, see also Brewer v. ArkJz_s_s,
 72 Ark. 145, 78 S.W. 773 {19{)4), and State v.
 _'_,_t_ to the illegal trafficking in this
 Thus, the necessity defense has been raised
 :'-_ *_ _h_ injuring, however nehulously. _L_T_}_L _|_$
 ' ""'_: _mbers of the public. In any event, effectively _o protect a v_riety of htterests0
 • _e_y that such slight, speculative and _0N$_LT_T[0_ _ TE$_0NY both within and without this juzisdiction0 in
 _'u_rab|e harm could be considered c_nnec_ioe with so-called strict llab_ty stat-
 '_ _d_:_nant than defendant's right to SEND FOR FFi_EE urea,
 ELECTRIC SHOCK 02_ FII_.E The additional subjects require discussion.
 .................. While the Court has found no precedents
 .... ,._ s,_ _,,_ _'_o_.._e_ _s_d RECONSTRUCTION BI_L_OG_APIfF precisely analogous to the case at bar, _wo
 .... _ .... _ _t;,,,_ ,_a_ i, _ur_o_ _o tbe recent decisions in this jurladietion have
 .... _'_ _*_'t,-t Of the _ven states stii_ using
 - ....... .... o. ed W|LL AM M. MAZE ,Ph O.,P E d cus d the defe  e in eonne ion
 _*_'*'**'_ _" _ _._aaa ¢_m the eta.s_ifieafion of ° • ° with drug charges. Garkam v. U_ed StaRes,
 "_'_ _ '_ _,,_Cou_t o_._ _sheld SUite 42,8, !82_ Connecticut Ave. N.W. 389 Ao_d401 {D.Co App. 1975L aad United
 "_" _ .... _ ' _ _ ._l,a,. L._St. that the States v. Moore, supra. In Gotham, the D.C.
 ":: ....... _ ........ _-,*_ th, _i_ht o* Washington, D.C, 20009

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