563.026. Justification generally. — 1. Unless inconsistent with other provisions of this chapter defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute any offense other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the offense charged.
2. The necessity and justifiability of conduct under subsection 1 of this section may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this section is offered, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.
3. The defense of justification under this section is an affirmative defense.
Notes of Decisions
City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo. Ct. App. 1982).
· cites it 24× “§ 563.026 RSMo 1978. Whenever evidence relating to the necessity defense is offered, the court must rule "as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.”
State v. Baker, 598 S.W.2d 540 (Mo. Ct. App. 1980).
· cites it 6× “Our own statute, § 563.026 RSMo 1978, recognizes the defense and represents an expression of the public policy of this state.”
State v. Beck, 167 S.W.3d 767 (Mo. Ct. App. 2005).
· cites it 3× “Likewise, § 563.026, governing the justification of using physical force in cases of emergency and necessity, speaks in terms of avoiding injury.”
State v. O'BRIEN, 784 S.W.2d 187 (Mo. Ct. App. 1989).
· cites it 6× “On this appeal, appellant contends that the trial court erred in (1) denying her motion to admit evidence of the defense of justification because her acts were within the meaning of "acts of necessity" as defined by § 563.026, R.S.Mo.1986, since such evidence would have…”
State v. Zuidema, 552 S.W.3d 186 (Mo. Ct. App. 2018).
· cites it 7× “2 At the jury instruction conference following the close of all the evidence at trial, defense counsel submitted instructions related to the defense of justification by emergency or necessity under section 563.026. After argument on the proffered instructions and verdict…”
State v. Kirkland, 684 S.W.2d 402 (Mo. Ct. App. 1984).
· cites it 4× “Moreover, defendant made no effort to report his fear or apprehension of being returned to "general population" after being advised thereof on December 11, 1982. The defense of "justification", the crux of defendant's first point, which is functionally synonymous with the…”
State v. Cox, 248 S.W.3d 1 (Mo. Ct. App. 2008).
· cites it 5× “In his third point, Cox claims that the circuit court erred in excluding' evidence regarding his medical need for marijuana to relieve his pain and suffering from his spinal cord injury because Section 563.026, RSMo 2000, makes medical necessity a valid defense to a possession…”
State v. Stewart, 186 S.W.3d 832 (Mo. Ct. App. 2006).
· cites it 3× “The application of the defense of justification by necessity under section 563.026 is extremely limited. See § 563.”
State v. Parkhurst, 845 S.W.2d 31 (Mo. 1993).
“See § 563.026 and MAI-CR3d 308.20. The portion of proposed instruction A relevant to this appeal states: If the defendant reasonably believed he was in imminent danger of harm from the acts of Ed Chamberlain or Matt Chamberlain and the defendant used only such force as…”
State v. Karr, 968 S.W.2d 712 (Mo. Ct. App. 1998).
· cites it 3× “The trial court is required to instruct the jury on the defense of justification by emergency or necessity under § 563.026 “when the claimed facts and circumstances, if true, are legally sufficient to support the instruction.”
State v. Farris, 778 S.W.2d 11 (Mo. Ct. App. 1989).
· cites it 4× “§ 563.026, RSMo 1986. Defendant’s evidence was: no one wanted to help him; it was cold; Vincel was unfriendly and he had to take the children somewhere.”
State v. Levering, 661 S.W.2d 792 (Mo. Ct. App. 1983).
· cites it 8× “Levering contends in her second claim on appeal that the trial court erred in failing to submit to the jury the defense of justification as provided in Section 563.026. That section provides in part that conduct which would otherwise constitute a crime, except a Class A Felony…”
— Mo. Rev. Stat. § 563.026(2) — 1 case
State v. Levering, 661 S.W.2d 792 (Mo. Ct. App. 1983).
“Levering contends in her second claim on appeal that the trial court erred in failing to submit to the jury the defense of justification as provided in Section 563.026. That section provides in part that conduct which would otherwise constitute a crime, except a Class A Felony…”
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