Justices: Jury should hear defense of necessity instruction

The Indiana Supreme Court ordered a new trial for a man convicted of a misdemeanor gun charge after finding he presented sufficient evidence to have the jury instructed on his defense of necessity.

John Hernandez was convicted of Class A misdemeanor carrying a handgun without a license after police stopped the vehicle he was a passenger in on a traffic violation. Hernandez reluctantly accepted a ride from Oliver Gray to a liquor store. Police then pulled the vehicle over because there was no license plate on the back of the car. According to Hernandez, Gray told him he wasn’t going to go back to jail and ordered Hernandez to take his gun “or else.” Hernandez said he was scared of what Gray would do if the handgun was in his possession and he put it in his pocket at Gray’s insistence.

When getting out of the vehicle, Hernandez told officers he had the gun, put his hands in the air and was arrested because he had no permit for the gun.

He wanted to give a tendered final jury instruction on necessity, but the trial court refused. The Court of Appeals affirmed.

“After review of the record, we hold that there was some evidence, even if not overwhelming, that warranted giving the defense of necessity instruction. And since there was no instruction, the jury could have found Hernandez guilty, even if they believed necessity had been proven. We also hold that the error prejudiced Hernandez. We vacate Hernandez’s conviction and remand to the trial court for a new trial. We summarily affirm the Court of Appeals on the evidentiary issue raised by Hernandez,” Justice Steven David wrote.

The case is John Hernandez v. State of Indiana, 49S02-1511-CR-644.

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