Defendant and appellant, Anthony Rome, Sr. (Anthony), was found guilty by the trial court of taking a minor child from the custodial parent, in violation of SDCL 22-19-9 and 22-19-10.* Anthony was sentenced to five years in the South Dakota Penitentiary, execution of sentence suspended upon his compliance with certain conditions of probation. Anthony appeals. We reverse and remand.
Anthony raises four issues on appeal. First, whether justification/necessity is a proper defense to the crime of childnapping and, if so, whether the trial court’s denial of the presentation of such defense is grounds for reversal. Second, whether the trial court committed reversible error in allowing the prosecutor to reopen his case for the admission of additional evidence once closing arguments had begun. Third, whether the trial court erred in denying Anthony’s motion for judgment of acquittal. Fourth, whether the trial court erred in amending its oral sentence so as to include an additional probation condition.
Anthony and his ex-wife, Cathy, were divorced in June of 1983 and at the time of the alleged offense were involved in custody litigation concerning their minor son, Anthony Rome, Jr. (Son). According to a court order entered September 19, 1986, Anthony’s visitation with Son was limited to every other Tuesday evening and the daylight hours of every other weekend. The order specifically disallowed overnight visitation. On October 19, 1986, Anthony picked up Son at his mother’s home at 9 a.m. for their usual visitation. Anthony was to return Son to his mother’s home by 6 p.m. that evening, but failed to do so. Cathy then contacted the authorities. A custody hearing had been scheduled to take place approximately one week after the abduction of Son by Anthony. Anthony did not return for that hearing. In mid-January of 1987, Anthony’s whereabouts was discovered by the FBI. Anthony was arrested in or near Cleveland, Ohio, and Cathy was notified that she could travel to Cleveland to pick up Son, which she did.
At trial, Anthony raised the issue of justification/necessity on three occasions. At a pretrial conference, in an off-the-record narrative, Anthony informed the court that he planned to introduce evidence concerning such defense. The trial court ruled such evidence (that Anthony had removed *21Son from the state to protect him from child abuse) was not admissible at the guilt phase of trial, but would be considered at the punishment phase of trial. At trial, and specifically to protect his record, Anthony questioned Cathy regarding her knowledge of any physical abuse Son might have received. The trial court ruled such testimony was irrelevant and immaterial. Such questions were meant to elicit the fact that Anthony was acting out of a good motive to protect the best interests of his son and were not relevant to the question of guilt or innocence. Again, at trial, the court allowed Anthony to make an offer of proof, which offer was denied. The trial court again characterized such evidence as going to motive and was, therefore, not an appropriate defense. Anthony argues justification/necessity is a proper defense and refusal of the trial court to allow presentation of such a defense denied him a fair trial and is grounds for reversal. State, on the other hand, seems to argue that even if justification/necessity is a proper defense, it is not applicable to this appellant. Therefore, Anthony was not prejudiced by the denial.
The defense of justification/necessity is grounded in SDCL 22-5-1 which provides:
A person may not be convicted of a crime based upon conduct in which he engaged because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been lawfully unable to resist.
We have said the above statute recognizes “that the defense of justification may negate criminal purpose.” State v. Miller, 313 N.W.2d 460, 461 (S.D.1981). (Emphasis added.) This is not to say that the crime committed, for which justification is sought, must be a specific intent crime. It is to say, however, that the conduct engaged in may not rise to the level of a crime. In Miller, the appellant was charged with escape, a general intent crime. The same is true of the crime of child-napping.
State contends that on determining whether to submit the justification defense to a jury, one of the factors the court will look to is whether there were alternate means to alleviate the threatened greater harm. As State points out, this custody matter was set for hearing within one week of the time Anthony spirited Son away from his mother. Anthony did not appear at the scheduled custody hearing. He made no attempt to report his allegations to authorities after attaining a position of safety. Finally, he eluded the authorities from state to state, until he was apprehended in Ohio.
We point out that the issue on appeal is not whether the evidence supported submission of the justification/necessity defense to the jury in this case, as is focused on in Chief Justice Wuest’s dissent; but rather, whether the trial court erred in preventing Anthony from presenting any evidence of this defense. We determine the trial court committed reversible error in prohibiting the introduction of any evidence relating to Anthony’s justification/necessity defense. State v. Goff, 79 S.D. 138, 109 N.W.2d 256 (1961) (refusal of trial judge to permit motorist, charged with failing to stop after being involved in an accident, to explain his leaving the scene, constituted prejudicial error).
Since this case must be reversed on the first issue, we find it unnecessary to comment on Anthony’s other arguments.
Reversed and remanded.
HENDERSON, SABERS and MILLER, JJ., concur. WUEST, C.J., dissents.SDCL 22-19-9 provides:
Any parent who takes, entices away or keeps his unmarried minor child from the custody or visitation of the other parent, or any other person having lawful custody or right of visitation, in violation of a custody or visitation determination entitled to enforcement by the courts of this state, without prior consent is guilty of a Class 1 misdemeanor. A subsequent violation of this section is a Class 6 felony.
SDCL 22-19-10 provides:
Any parent who violates § 22-19-9 and causes the unmarried minor child taken, enticed or kept from his lawful custodian to be removed from the state is guilty of a Class 5 felony.