dissenting:
I must respectfully dissent from the majority opinion because I disagree with the majority view concerning the issues of compulsion and necessity. Although courts have long recognized the defenses of duress and necessity, they have been reluctant to allow these defenses in cases involving prison escapes. They have uniformly held that intolerable, unwholesome and inhumane prison conditions do not justify an escape from prison. “Until [People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal. Rptr. 110 (1974)], no reviewing court had ever upheld a defense of necessity in ordinary adverse situations such as threats from fellow inmates.” 1975 U. Ill. L.F. 271, 275.
Compulsion as a defense exists when a person performs what would otherwise be a criminal act under threat of serious injury or death. Although there is no case directly on point, it seems implicit in the few escape cases where compulsion has been raised that this defense would be available in appropriate circumstances. However, compulsion involves two aspects: an impending, imminent, present threat coupled with a demand that the person perform some criminal act in order to avoid the consequences of the threat.
Illinois courts have recognized these requirements. In People ex rel. Rusch v. Rivlin, 277 Ill.App. 183 (1st Dist. 1934), the court stated:
“‘The compulsion which will excuse a criminal act, however, must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injuiy is not enough. * * 277 Ill.App. 183, 196.
In People v. Lighting, 83 Ill.App.2d 430, 228 N.E.2d 104 (1st Dist. 1967), where the defendant was charged with murder following an attempted robbery, he claimed compulsion because another person had told defendant that defendant would be killed if he did not perform the robbery. The court stated that this may be a defense for the robbery, but not the murder, since defendant was no longer in that person’s presence when he committed the murder. This case illustrates both requirements: the threats must be immediate and imminent and the person making the threat must demand that defendant perform the criminal act with which defendant is charged. People v. Adcock, 29 Ill.App.3d 917, 331 N.E.2d 573 (3rd Dist. 1975), is simüar to Lighting. In Adcock, this court held that a compulsion instruction should have been given where there was some evidence that defendant participated in a robbery because he feared he would be killed if he didn’t. People v. Wester, 337 Cal.App.2d 232, 46 Cal. Rptr. 699 (1965), is an escape case which clearly illustrates these principles. The court there stated that compulsion is available as a defense only if there is a demand that the defendant escape, coupled with threats of harm for noncompliance with the demand.
The majority opinion statement “We do not believe that a gun to the head immediacy is essential to establish either compulsion or necessity,” is contrary to what this court decided in People v. Davis, 16 Ill.App.3d 846, 306 N.E.2d 897 (3rd Dist. 1974). There defendant claimed that he had escaped because of threats on his life and also because he had been refused medical treatment. This court held that defendant was not entitled to an instruction on compulsion, stating:
“In the instant case, defendant did not maintain that there was an immediate or imminent threat of danger for his life nor did he maintain that the one imposing the threats demand he commit the prohibited act of escape. In fact defendant gave a second reason for his escape, that being the lack of medical care in the prison. A11 of these facts indicate defendant was not under compulsion as defined by the statute.” (16 Ill.App.3d 846, 848.)
This interpretation of the compulsion statute in Davis was recently affirmed in another escape case, People v. Terry, 30 Ill.App.3d 713, 332 N.E.2d 765 (5th Dist. 1975).
There are certain facts in evidence which the majority has failed to consider in reaching its decision. The conditions for permitting the defenses of compulsion and necessity imposed in Lovercamp have not been satisfied in this case. Although defendant had “time for complaint to the authorities,” he did not make a complaint. Furthermore, defendant had another reason for his escape. He stated, “I never mentioned any assaults” because “I had the intent on leaving for the reasons of attaining publicity.” (Abstract of record 59-61.) The fifth factor in Lovercamp, that the escapee make “immediate report to the authorities when he reaches a position of safety,” has likewise not been met. The defendant here stole a truck nine hours after his escape and then drove to Chicago. Later he drove to St. Charles and used the phone to call friends in Canada but did not attempt to contact prison authorities. Abstract of record 63.
Since, under the facts of this case, the defense of compulsion or necessity could not, as a matter of law, apply in the instant case, I do not believe Instruction No. 9 was improper. In addition an instruction on compulsion would be erroneous at any trial where these facts are in evidence.
For the reasons stated, I must dissent from this opinion.