Keeler v. Superior Court

Supreme Court of California, 1970.

2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617.

Dressler, p. 81-89


Facts: The defendant accosted the pregnant victim and shoved his knee in her abdomen, damaging the fetus and causing it to be stillborn.  The defendant was charged with three criminal counts, including murder.  In response the defendant filed a writ of prohibition to stop the proceedings.


Issues: Is the fetus a human being?  Can the defendant be charged with its murder?


Rules: The California Penal Code is to be interpreted in light of the common law it codified.  Cases from common law rule that only a child who has been born can be murdered.  The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute.  Statutes are to be interpreted in the manner most favorable to the defendant.  Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation.


Analysis: The majority reasons that the defendant may only be indicted for murder if the fetus was a “human being” under the definition used in the California murder statute.  The words “human being” were chosen at the time the statute was written, which was in 1850.  The court argues that in 1850, an infant could only be murdered if it had been born alive.  Therefore, the words did not mean to include fetuses.


In response to the State’s argument that the common law requirement of live birth was outdated due to advances in medicine, the majority enumerated two obstacles to any change in the criminal law.


First, the majority, explains, the constitutional separation of powers and the principle of legality prevent the court from creating new crimes.

Second, even if the court expanded the statute to include the conduct of the defendant, the change would not apply retroactively because of the Constitutional guarantee of due process.  The defendant would have to know in advance that such conduct is illegal.  The court finds that the defendant could not have foreseen a change in the murder statute, and thus holding him to the change would violate his right of due process.


Acting Chief Justice Burke dissented, saying that the common law was a product of its time, and that the court’s interpretation of the murder statute—and in particular its working definition of “human being”—should take into account changes in medicine that would allow a fetus at the stage of Baby Girl Vogt to live outside the womb.


Burke says that convicting the defendant of murder would not create a new offense, and thus would not violate the principle of legality or overstep the bounds of the court.  Burke says that the legislature intends the words “human being” to be construed broadly and in such a way as to promote justice.


He further argues against the majority’s contention that the defendant would lack “fair warning” and that the defendant’s right to due process would be violated.  Burke claims that the defendant would know from common sense that he could be indicted for murder for killing a viable fetus.


Conclusion: The court rules that the Superior Court does not have the power to convict the defendant of murder.  Burke dissents.


Notes and Questions


1.     The statute broadens murder further than Justice Burke felt was required (with the explicit exception of abortion).  He wanted the statute enlarged so that the term “human being” included “the fully viable fetus”.  The statute as written seems to include all and any fetuses.  Burke would have wanted the legislature to amend the statute to make the term “human being” more inclusive rather than simply append the words “or a fetus”.

2.     So the protection of due process is the judicial analogue of the prohibition on ex post facto laws.

3.     Accepting or rejecting the principle of legality versus the principle of crime by analogy runs in parallel to a society’s value judgment between the presumption of innocence and the presumption of guilt.


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