Keeler
v. Superior Court
Supreme Court of
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
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was outdated due to advances in medicine, the majority enumerated two obstacles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.