Opinion
Hearing Granted Nov. 26, 1969.
Richard A. Hunter, San Jose, for petitioner.
Thomas C. Lynch, Atty. Gen., by Arnold O. Overoye, Deputy Atty. Gen., Sacramento, for respondent.
FRIEDMAN, Associate Justice.
Petitioner Robert Keeler is charged by information with aggravated assault upon his divorced wife, with wilfully inflicting corporal injury upon her and with the murder of the unborn child she was carrying at the time of the alleged assault. He seeks a writ of prohibition to stay his prosecution on the murder charge.
The California Penal Code (section 187) defines murder as 'the unlawful killing of a human being, with malice aforethought.' Manslaughter too is defined as the killing of a human being. (Pen.Code, § 192.) Petitioner contends that a fetus is not in law a human being, hence that no homicide is committed by one who puts it to death.
We summarize the evidence at the preliminary hearing: Mrs. Keeler had secured an interlocutory decree of divorce from petitioner in September 1968. On February 23, 1969, she was driving on a narrow mountain road in Amador County enroute to Stockton, where she was living with another man in a nonmarital relationship. She was pregnant by this man. As Mrs. Keeler managed to get back into her car and continued to Stockton. The police and an ambulance were summoned to her home, and she was taken to a hospital. Doctors observed her injuries. She was bleeding extensively from the nose and mouth. She had lacerations on her face which required suturing. She had a fracture of the nasal bone and a tooth had been knocked out. There was extensive bruising on the exterior of her abdomen. On the abdomen were two or three crescent-shaped marks which appeared to be heel imprints.
A Caesarean section was performed. The doctor examined the baby in utero. He said that when he reached in to feel the baby's head, '* * * it was constricted like a bag of mush.' The head of the fetus had been extensively and severely fractured. Its death had been immediate. Because there was no maceration of the skin of the fetus, the doctors believed the baby had been alive eights hours before its delivery. Mrs. Keeler testified that the baby had moved in her earlier that day, but not after she left the scene of the attack. Her obstetrician stated that the pregnancy had been progressing normally and he had been able to detect movement as well as fetal heart tones. The fetus had attained a weight of approximately five pounds. Medical estimates of the term of pregnancy varied from 31 weeks to 36 weeks. There was medical testimony that the fetus had 'definitely' reached the stage of viability, that is, 'with reasonable medical certainty' premature separation from the mother at that point of pregnancy would not have ended the child's life.
There are many descriptions in legal literature of the English common law doctrine which refused to recognize feticide as homicide, demanding that a child be fully born and functionally independent of its mother in order to be treated as a homicide subject. (People v. Chavez (1947) 77 Cal.App.2d 621, 624-625, 176 P.2d 92; Perkins on Criminal Law (1957) p. 27; 40 Am.Jur.2d, Homicide, § 9, pp. 300-301; 40 C.J.S. Homicide § 2, p. 825; Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (1968) 14 N.Y. Law Forum 411; Note, 159 A.L.R. 523; see Williams, ThSanctity of Life and the Criminal Law (1957) pp. 5-10.)
These descriptions are not quite accurate, or at any rate represent an incomplete statement of historic development. The most thorough and scholarly inquiry on the subject (Means, op. cit.) discloses the common law's heavy borrowings from theological and philosophic inquiries into the incipience of human quality. Although theologians tended to attach human value to the embryo immediately after conception, the early common law required quickening, that is, animation. Bracton's, The Laws and Customs of England, quoted in Means, op. cit., page 419, represents a 13th-century description of English law: 'If there be anyone who strikes a pregnant woman or gives her a poison whereby he causes an abortion, if the foetus be already formed or animated, and especially if it be animated, he commits homicide.' Bracton's declaration thus imparted human status to the embryo at some point during the second trimester of pregnancy, when quickening occurs. (See Means, op. cit., pp. 412, 420.)
Eventually the common law shifted to the 'born alive' theory, as represented by Sir Edward Coke's description of English law in mid-17th century (quoted in Means, Such a rule tends to precipitate as the artificial formalism of an esoteric discipline, achieving increasing alienation from the religious, moral and scientific ponderings which attended its inception. In juxtaposition to later-adopted abortion statutes, the common law rule left a noman's land between the prohibitions against abortion and homicide. In some states and in Great Britain itself, the gap was filled by statutes defining feticide as a crime. (See 40 C.J.S. Homicide §§ 2, 38, pp. 825, 899-900; Williams, op. cit., pp. 11-12.) California has not enacted a feticide statute.
The question is one of law, not of morality, medicine or popular belief. (Cf. Knutson, When Does A Human Life Begin? Viewpoints of Public Health Professionals, 57 Am. Journal of Public Health (Dec. 1967) p. 2163 et seq.) Inquiry into the rule's present status, nevertheless, should be grounded in the conditions of modern life, rather than those of past centuries in which the rule evolved. The common law did not congeal into immobility after its transportation to the American states. (See Katz v. Walkinshaw (1903) 141 Cal. 116, 122-124, 70 P. 663, 74 P. 766, 64 L.R.A. 236.) The 'born alive' rule of England never crystallized as acknowledged California law. In Scott v. McPheeters (1939) 33 Cal.App.2d 629, 635, 92 P.2d 678, 93 P.2d 562, the court observed that a 'seven-months baby' has well developed organs and is capable of life outside the mother's womb. It posed the rhetorical question: 'Who may say that such a viable child is not in fact a human being in actual existence?'
McPheeters was a civil damage case, but in People v. Chavez, supra, 77 Cal.App.2d 621, 176 P.2d 92, became an instrumentality in the evolutionary development of California homicide law. There a mother permitted her baby to die after it dropped from her womb. In a remarkable opinion the court held that evidence of life after complete separation from the mother's body was not needed, thus affirming her conviction of manslaughter. It observed (77 Cal.App.2d at p. 625, 176 P.2d 92, at p. 94) that neither birth nor removal by Caesarean section created a human being, rather, that the baby 'has started an independent existence after it has reached a state of development where it is capable of living and where it will, in the normal course of nature and with ordinary care, continue to live and grow as a separate being.' Citing McPheeters, the court stated (77 Cal.App.2d at p. 626, 176 P.2d at p. 95) that the common law rule denying identity to a viable fetus is contrary not only to 'common experience and the ordinary course of nature' but also to the law's presumption that 'things happen according to the ordinary course of nature * * *.' (See Civ. Code, § 3546.)
Both McPheeters and Chavez are implicit with recognition of 20th-century advances in obstetrics and pediatrics. Today American medical men and hospitals are prepared with the learning, techniques and equipment to preserve the lives of premature infants. Given normal development through the first seven months of intrauterine life, a premature infant is expected to live. To crystallize the 'born Katz v. Walkinshaw,
The Encyclopaedia Britannica (1968 ed., vol. 8, p. 327) states: 'Infants born before 6 1/4 months (27 weeks) are rarely viable; from 6 1/4 to 7 months they may survive with good care, and after 7 months (30 weeks) they are generally viable.'
Except where the felony-murder doctrine applies, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington (1965) 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Finley (1963) 219 Cal.App.2d 330, 339-340, 33 Cal.Rptr. 31.) Here the evidence would support a finding of murderous intent directed against the unborn infant. Uncertainty as to its viability presents no impediment to a rule endowing it with status as a human being when it reaches a viable state. An autopsy is a usual sequel and pathologists' findings will be available. Viability of the fetus may be made the subject of expert medical testimony and the question submitted to the jury in company with the other questions of fact. In passing upon that question, as others, the jury are bound by the law's demand for proof beyond a reasonable doubt. (Pen.Code, § 1096.)
In applying the 'born alive' rule, various courts have adopted auxiliary tests of 'life,' such as respiration and blood circulation. The isolation of these tests from medical fact is exemplified by the somewhat poetic utterance of an Iowa court: 'Life means respiration. Not to have breathed is not to have lived.' (State v. Winthrop (1876) 43 Iowa 519 [22 Am.Rep. 257].) It is now recognized that a fetus makes respiratory movements before birth; that the actual intake of air may commence during delivery; on the other hand, that some delay may ensue between complete extrusion from the mother's body and the intake of air. The notion of independent blood circulation is equally unrealistic, for there is no direct linkage between the blood of the mother and the blood of the fetus. (Williams, op. cit., pp. 6-9; Lear, His Momentary Ancestor, Saturday Review, Dec. 7, 1968, pp. 73-74.) Such judicial tests demonstrate the difficulty of applying artificial divisions to a continuous process. Proof beyond a reasonable doubt of capacity to live outside the womb provides a test more in keeping with the realities of continuous human development.
Nor is the offender's advance uncertainty as to the character of his offense a source of objection. This is not a case where mens rea swings on verbal uncertainties in a criminal statute. (Cf. People v. Belous, 71 A.C. ----, 80 Cal.Rptr. 354, filed 9/5/69.) Petitioner's actions evince a general intent to harm and destroy. Preceding his assault he investigated neither the law nor the precise stage of fetal development. '[T]he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment * * *; he may incur the penalty of death.' (Nash v. United States (1913) 229 U.S. 373, 377, 33 S.Ct. 780, 781, 57 L.Ed. 1232, per Holmes, J.)
Even where, according to the evidence, the offender's malicious design is aimed at the mother alone, the infliction of death upon her viable fetus might yet be murder, although probably not of the first degree. A killing of the latter sort might be submitted to the jury as second degree felonymurder, a killing committed in the perpetration People v. Williams
A rule recognizing the slaying of a viable fetus as homicide engenders no practical conflict with the abortion laws. Abortions, legal or illegal, almost invariably occur during the early stage of pregnancy. California's Therapeutic Abortion Act does not sanction any termination of pregnancy after the twentieth week. (Health & Saf. Code, § 25953.) A fetus reaches the stage of viability only during the third trimester of pregnancy. (See fn. 1, supra.)
On September 5, 1969, the California Supreme Court filed its decision in People v. Belous, supra. In a split decision the court held that California's pre-1967 abortion law was void for uncertainty (at least as to the defendant before the court). The majority opinion stated arguendo: 'The intentional destruction of the embryo or fetus is never treated as murder, and only rarely as manslaughter but rather as the lesser offense of abortion. (Perkins, Criminal Law, supra, p. 10; Means, supra, 14 N.Y.L.F. at p. 445.)'
Were the quoted dictum intended as a statement of California law, it would be almost compelling here. To the contrary, we interpret it as a description of the state of current law in most American jurisdictions, as evidenced by the cited authorities. That interpretation is fortified by the reference to manslaughter. If, as a matter of California law, feticide can amount to manslaughter, it can also constitute murder. In mentioning manslaughter, the majority opinion in Belous was only pointing out that a few states have adopted statutes defining feticide as manslaughter. (See 40 C.J.S. Homicide §§ 2, 38, pp. 825, 899-900.) The writer of the Belous opinion was not discussing feticide featured by malicious design against mother, infant or both. The Belous dictum leaves the question before us an open one in California. We are satisfied that a fetus which has reached the stage of viability is a human being for the purpose of California's homicide statutes.
The petition is denied and the order to show cause discharged.
PIERCE, P. J., and JANES, J., concur.
A set of 1954 statistics displays an 80% survival rate for infants delivered during the 32d and 33d weeks of pregnancy and weighing 1500 to 1750 grams; an 88% rate when delivered after 33 to 34 weeks of pregnancy and weighing 1750 to 2000 grams; a 96% rate when delivered after 34 to 36 weeks and weighing 2000 to 2500 grams. (5 Lawyers' Medical Cyclopedia, § 37.17, p. 420.) A set of 1961 statistics exhibits a 98% survival rate for infants weighing 2000 to 2500 grams. (7 The Cyclopedia of Medicine, Surgery, Specialties, p. 275.) In the case at bar, the fetus had attained a weight of 2205 grams (approximately five pounds) at the time of its death.