Keeler v. Superior Court

Supreme Court of California · 1970 · Criminal Law

Criminal LawMurderStatutory InterpretationDue Processmurderfetusviabilityhuman being

Facts

After an interlocutory divorce decree, petitioner confronted his estranged wife on a mountain road after learning she was pregnant by another man. He said, "You sure are. I'm going to stomp it out of you," then pushed her against the car, drove his knee into her abdomen, and struck her in the face. A Caesarian section was performed; the fetus had a severely fractured skull, was delivered stillborn, had no air in its lungs, and the umbilical cord was intact. Expert testimony concluded with reasonable medical certainty that the fetus was viable on the date of the attack.

Issue

Whether an unborn but viable fetus was a "human being" within the meaning of California Penal Code section 187, so that petitioner could be prosecuted for murder. Also, whether a court could adopt such a construction and apply it to petitioner consistently with judicial power and due process.

Rule

Under Penal Code section 187 as enacted, "human being" means a person who has been born alive; the statute does not include an unborn fetus, even if viable. A court may not create or enlarge a criminal offense by judicial construction, and any unforeseeable judicial enlargement of a criminal statute cannot be applied retroactively because due process requires fair warning.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Fresno, Nolan Pierce attacked his former partner, Elena Ruiz, knowing she was eight months pregnant. Doctors concluded the fetus was viable but was delivered stillborn after the assault, and there was no evidence labor had begun before the attack.

Under the majority rule, may Nolan be prosecuted for murder for the death of the fetus under the California statute defining murder as the unlawful killing of a human being with malice aforethought?

Explanation. The majority held that, as enacted, the murder statute's term 'human being' incorporates the common law born-alive rule. Thus an unborn fetus, even if viable, is not within section 187 unless it had been born alive. Medical advances and viability do not authorize a court to expand the statute's reach.