(dissenting).
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 his dissent, the Chief Justice has accurately set forth the standards which this court has adopted in considering the defense of necessity. These standards have not been met here. The evidence sought to be introduced by defendant was simply too remote.1
Even if the majority is correct in its holding that the justification/necessity defense is proper in the childnapping charge, its rationale and logic totally fails when applying such defense to the aggravated *5assault charge. Defendant presented no offer of proof testimony directly relating to the aggravated assault charge. Therefore, it is necessary for us to examine other testimonial records to ascertain whether the proposed defense is available.2
There were absolutely no facts submitted by defendant to the trial court which would justify the use of the justification/necessity defense on aggravated assault. Miller, supra; see also State v. Watkins, 316 N.W.2d 627 (S.D.1982).
. I feel compelled to note that the trial court in its findings of fact and conclusions of law properly distinguished this case from Rome. The trial court specifically concluded, inter alia: that "... the custodial grandfather’s undated, unspecified, and unconfirmed contact with two female children was relayed to Defendant approximately one (1) year prior to the actions giving rise to the crime" (Conclusion 6); “[T]he redness in the vaginal area was observed some fifteen (IS) months prior to these actions. Additionally, (the child) had a history of mild to severe diaper rash." (Conclusion 7); "[A] divorce custody investigation by the Department of Court Services in October 1987, and a Department of Social Services Report of July, 1987, investigated possible sexual abuse of (the child); noted Defendant’s concerns; but identified the perpetrator as the Defendant’s brother.” (Conclusion 8); "[T]o permit the Defendant to use justification/necessity as a defense in this case, under the aforementioned circumstances, would be sanctioning every noncustodial parent a means of relitigating a custody determination before a jury. It would render meaningless the child custody determinations of the trial courts." (Conclusion 9)
. An examination of the preliminary hearing transcript indicates that defendant went to the grandparents’ farm house and gained access to the entryway under the guise of giving the child a Christmas gift. Defendant then allegedly grabbed the grandmother around the neck and sprayed some substance into her face. A struggle ensued in which defendant allegedly struck the grandmother, and additionally kneed her in the stomach and hit her on the head with a bottle. Defendant allegedly attempted to tie up the grandmother with duct tape and tried to choke her with a telephone cord. Defendant was alleged to have stated several times that she was going to "get rid” of the grandmother.