Keeler v. Superior Court

• Decision Date: 12 June 1970
• Citation: 470 P.2d 617,87 Cal.Rptr. 481,2 Cal.3d 619,40 A.L.R.3d 420
• Court: California Supreme Court
• Parties: , 470 P.2d 617, 40 A.L.R.3d 420 Robert Harrison KEELER, Petitioner, v. The SUPERIOR COURT OF AMADOR COUNTY, Respondent, The PEOPLE, Real Party in Interest. Sac. 7853.

Page 481

87 Cal.Rptr. 481

2 Cal.3d 619, 470 P.2d 617, 40 A.L.R.3d 420

Robert Harrison KEELER, Petitioner, v. The SUPERIOR COURT OF AMADOR COUNTY, Respondent, The PEOPLE, Real Party in Interest.

Sac. 7853.

Supreme Court of California,

In Bank.

June 12, 1970.

Rehearing Denied Sept. 10, 1970.

Gard Chisholm, Don F. Howard, Jackson, and Richard A. Hunter, for petitioner.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Arnold O. Overoye, Deputy Atty. Gen., for real party in interest.

MOSK, Justice.

In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a 'human being' within the meaning of the California statute defining murder (Pen.Code, § 187). We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.

The evidence received at the preliminary examination may be summarized as follows: Petitioner and Teresa Keeler obtained an interlocutory decree of divorce on September 27, 1968. They had been married for 16 years. Unknown to petitioner, Mrs. Keeler was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She subsequently began living with Vogt in Stockton, but concealed the fact from petitioner. Petitioner was given custody of their two daughters, aged 12 and 13 years, and under the decree Mrs. Keeler had the right to take the girls on alternate weekends.

On February 23, 1969, Mrs. Keeler was driving on a narrow mountain road in Amador County after delivering the girls to their home. She met petitioner driving in the opposite direction; he blocked the road with his car, and she pulled over to the side. He walked to her vehicle and began speaking to her. He seemed calm, and she rolled down her window to hear him. He said, 'I hear you're pregnant. If you are you had better stay away from the girls and from here.' She did not reply, and he opened the car door; as she later testified, 'He assisted me out of the car. * * * (I)t wasn't roughly at this time.' Petitioner then looked at her abdomen and became 'extremely upset.' He said, 'You sure are. I'm going to stomp it out of you.' He pushed her against the car, shoved his knee into her abdomen, and struck her in the face with several blows. She fainted, and when she regained consciousness petitioner had departed.

Mrs. Keeler drove back to Stockton, and the police and medical assistance were summoned. She had suffered substantial facial injuries, as well as extensive bruising of the abdominal wall. A Caesarian section was performed and the fetus was examined in utero. Its head was found to be severely fractured, and it was delivered stillborn. The pathologist gave as his opinion that the cause of death was skull fracture with consequent cerebral hemorrhaging, that death would have been immediate, and that the injury could have been the result of force applied to the mother's abdomen. There was no air in the fetus' lungs, and the umbilical cord was intact.

Upon delivery the fetus weighed five pounds and was 18 inches in length. Both Mrs. Keeler and her obstetrician testified that fetal movements had been observed prior to February 23, 1969. The evidence was in conflict as to the estimated age of the fetus; ¹ the expert testimony on the point, however, concluded 'with reasonable medical certainty' that the fetus had developed to the stage of viability, i.e., that in the event of premature birth on the date in question it would have had a 75 percent to 96 percent chance of survival.

An information was filed charging petitioner, in Count I, with committing the crime of murder (Pen.Code, § 187) in that he did 'unlawfully kill a human being, to wit Baby Girl VOGT, with malice aforethought.' In Count II petitioner was charged with wilful infliction of traumatic injury upon his wife (Pen.Code, § 273d), and in Count III, with assault on Mrs. Keeler by means of force likely to produce great bodily injury (Pen.Code, § 245). His motion to set aside the information for lack of probable cause (Pen.Code, § 995) was denied, and he now seeks a writ of prohibition; as will appear, only the murder count is actually in issue. Pending our disposition of the matter, petitioner is free on bail.

I

Penal Code section 187 provides: 'Murder is the unlawful killing of a human being, with malice aforethought.' The dispositive question is whether the fetus which petitioner is accused of killing was, on February 23, 1969, a 'human being' within the meaning of this statute. If it was not, petitioner cannot be charged with its 'murder' and prohibition will lie.

Section 187 was enacted as part of the Penal Code of 1872. Inasmuch as the provision has not been amended since that date, we must determine the intent of the Legislature at the time of its enactment. But section 187 was, in turn, taken verbatim from the first California statute defining murder, part of the Crimes and Punishments Act of 1850. (Stats.1850, ch. 99, § 19, p. 231.) ² Penal Code section 5 (also enacted in 1872) declares: 'The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.' We begin, accordingly, by inquiring into the intent of the Legislature in 1850 when it first defined murder as the unlawful and malicious killing of a 'human being.'

It will be presumed, of course, that in enacting a statute the Legislature was familiar with the relevant rules of the common law, and, when it couches its enactment in common law language, that its intent was to continue those rules in statutory form. (Baker v. Baker (1859) 13 Cal. 87, 95--96; Morris v. Oney (1963) 217 Cal.App.2d 864, 870, 32 Cal.Rptr. 88.) This is particularly appropriate in considering the work of the first session of our Legislature: its precedents were necessarily drawn from the common law, as modified in certain respects by the Constitution and by legislation of our sister states. ³ We therefore undertake a brief review of the origins and development of the common law of abortional homicide. (For a more detailed treatment, see 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.L.F. 411 (hereinafter cited as Means); Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L., C. & P.S. 84; Quay, Justifiable Abortion--Medical and Legal Foundations II (1961) 49 Geo.L.J. 395.) From that inquiry it appears that by the year 1850--the date with which we are concerned--an infant could not be the subject of homicide at common law Unless it had been born alive. ⁴ Perhaps the most influential statement of the 'born alive' rule is that of Coek, in mid-17th century: 'If a woman be quick with childe, ⁵ and by a potion or otherwise killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision (i.e., misdemeanor), and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, In rerum natura, when it is born alive.' (3 Coke, Institutes ^*58 (1648).) In short, 'By Coke's time, the common law regarded abortion as murder only if the foetus is (1) quickened, (2) born alive, (3) lives for a brief interval, and (4) then dies.' (Means, at p. 420.) Whatever intrinsic defects there may have been in Coke's work (see 3 Stephen, A History of the Criminal Law of England (1883) pp. 52--60), the common law accepted his views as authoritative. In the 18th century, for example, Coke's requirement that an infant be born alive in order to be the subject of homicide was reiterated and expanded by both Blackstone ⁶ and Hale. ⁷

Against this background, a series of infanticide prosecutions were brought in the English courts in mid-19th century. In each, a woman or her accomplice was charged with murdering a newborn child, and it was uniformly declared to be the law that a verdict of murder could not be returned unless it was proved the infant had been born alive. Thus in Rex v. Brain (1834) 6 Carr. & P. 349, 350, 172 Eng.Rep 1272, the court instructed the jury that 'A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed; as many children are born alive, and yet do not breathe for some time after their birth. But you must be satisfied that the child was wholly born into the world at he time it was killed, or you ought not to find the prisoner guilty of murder.' (Accord, Rex v. Poulton (1832) 5 Carr. & P. 329, 172 Eng.Rep. 997; Rex v. Enoch (1833) 5 Carr. & P. 539, 172 Eng.Rep. 1089; Rex v. Crutchley (1836) 7 Carr. & P. 814, 173 Eng.Rep. 355; Rex v. Sellis (1836) 7 Carr. & P. 850, 173 Eng.Rep. 370; Reg. v. Reeves (1839) 9 Carr. & P. 25, 173 Eng.Rep. 724; Reg. v. Wright (1841) 9 Carr. & P. 754, 173 Eng.Rep. 1039; Reg. v. Trilloe (1842) Carr. & M. 650, 174 Eng.Rep. 674; see also cases collected in Atkinson, Life, Birth, and Livebirth (1904) 20 L.Q.Rev. 134, 139--145.)

Of these decisions, some pointed out that evidence of breathing is not conclusive because that function may begin before the infant is fully born (Poulton, Enoch, Sellis), while others observed that the infant can possess an 'independent circulation'--one of the tests used to determine live birth--even though the umbilical cord may not yet be severed (Reeves, Trilloe). But all were in agreement that however live birth was to be proved, unless that event had occurred before the alleged criminal act there could be no conviction of homicide.

By the year 1850 this rule of the common law had...