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Choice of Evils – NecessityCase:
 
The Queen v. Dudley & Stephens
, 12 Q.B.D. 273 (1884)Facts: Δs were lost at sea, with no food or water. They ended up killing one of the crew members, and ate himto survive. They were picked up and saved 4 days after this by another vessel. If they hadn't killed the boy, theywould not have survived, and the boy was very weak, he would have probably died too.Holding: This is murder unless it can be justified. Court says that killing out of necessity (self-defense) of another person to save your own life only is justified when the victim was threatening the Δs life, not if thevictim is innocent. But Court also talks about extreme necessity, and discusses whether it can be justified. Butthere is no absolute or unqualified necessity to preserve one's life.
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Can't take innocent life to save 3. rejects the utilitarian view of giving one life to save others. Moreretributive - it's just wrong, you can't murder.
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In hindsight, what they did saved lives. Court rejects looking at it in hindsight. Look at it from the timethey made the decision to kill. A rescue boat could have come much sooner, and all 4 would havesurvived. Must look at it from perspective of time they made that decision. The lesser evil at the timewas to leave all 4 alive.
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Court ultimately says - we don’t care. From retributivist perspective, just wrong to take an innocent life.
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Distinction of this case with case of mountaineer cutting rope of the other that lost his grip
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Imminent - harm to Δ / inevitable death of victim
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Choice of victim - if they had pulled straws it would be more sympathetic because there wasequal risk; all consented
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Cause of death (gravity vs. death) 
Notes
:
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Lesser Evils / Choice of Evils
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The harm caused by the justified behavior remains a legally recognized harm that is to beavoided whenever possible. However, that harm may be outweighed by the need to avoid aneven greater harm or to further a greater societal interest.
Ex.: Raging forest fire is coming towards a town of 10,000 ppl. Δ burns a corn fieldlocated between forest & town, which serves as a firebreak and saves the town. This isarson, but he has a complete defense; his action was justified.
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MPC § 3.02. Justification Generally: Choice of Evils
(1) Conduct that the actor believes to be necessary to avoid harm or evil to himself or toanother is justifiable, provided that:
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(a) the harm or evil sought to be avoided by such conduct is greater than
that 
sought to be prevented by the law defining the offense charged; and
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(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
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(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
(2) when the actor was reckless or negligent in bringing about the situation requiring achoice of harms or evils or in appraising the necessity for his conduct, the justificationafforded by this Section is unavailable in a prosecution for any offense for whichrecklessness or negligence, as the case may be, suffices to establish culpability.
Commentary
. MPC accepts the view that a principle of necessity, properly conceived,afford a general justification for conduct that would otherwise constitute an offense.
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