State v. Boettcher

I concurred in State v. Rome and continue to support its holding. I conclude, however, that the facts here are clearly distinguishable from those in Rome.

As was so clearly stated by this court in State v. Miller, 313 N.W.2d 460 (S.D.1981) (which was so heavily relied upon by us in Rome and by the majority here) the justification/necessity defense is properly raised only when the tendered evidence would support a jury finding that the offense was justified by a reasonable fear of death or bodily harm that is imminent or emergent according to ordinary standards of intelligence and morality. In…