Com. v. Cass

• Decision Date: 16 August 1984
• Citation: 467 N.E.2d 1324,392 Mass. 799
• Parties: COMMONWEALTH v. Daniel I. CASS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1324

467 N.E.2d 1324

392 Mass. 799

COMMONWEALTH v. Daniel I. CASS.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Oct. 5, 1983.

Decided Aug. 16, 1984.

Jerome Doyle, Osterville, for defendant.

Don L. Carpenter, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

This case presents the question whether a viable fetus is a "person" for purposes of our vehicular homicide statute, G.L. c. 90, § 24G. At the request of both parties, a judge of the District Court reported the case to the Appeals Court on a statement of agreed facts. Mass.R.Crim.P. 34, 378 Mass. 905 (1979). We transferred the case here on our own motion. We decide that a viable fetus is a person for purposes of G.L. c. 90, § 24G. However, because our decision may not have been foreseeable, we do not apply it to this case or to other homicides occurring before the date of this decision.

The agreed facts are summarized as follows. On November 24, 1982, the defendant, while operating a motor vehicle on a public way, struck a female pedestrian who was eight and one-half months pregnant. The fetus died in the womb and was delivered by Caesarean section. It was determined by autopsy that the fetus was viable at the time of the incident and that it died as a result of internal injuries caused by the impact of the vehicle operated by the defendant.

The defendant is charged with violating the homicide by motor vehicle statute, G.L. c. 90, § 24G (b ), as appearing in St.1982, c. 376, § 2, which provides in pertinent part: "Whoever ... operates a motor vehicle while under the influence of intoxicating liquor, or of marihuana, narcotic drugs, depressants, or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, or whoever operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered and by any such operation causes the death of another person, shall be guilty of homicide by a motor vehicle ...." ¹ The question before us is whether a viable fetus is within the meaning of the term "person" as thus used. The question is one of legislative intent.

1. The vehicular homicide statute was enacted in 1976, see St.1976, c. 227, shortly after our decision in Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975). In Mone, the Justices of this court unanimously agreed that a viable fetus would be considered a person for purposes of our wrongful death statute. ² We found "neither reason nor logic in choosing live birth over viability," and we stated that "conditioning a right of action on whether a fatally injured child is born dead or alive is not only an artificial and unreasonable demarcation, but is unjust as well." Id. at 360-361, 331 N.E.2d 916. The similarities between Mone and the instant case are striking: like the instant case, Mone involved the construction of the word "person" in a statute as applied to an eight and one-half month old, viable fetus killed as a result of alleged negligence on the part of the operator of a motor vehicle. "The Legislature is presumed to have had knowledge of the decisions of this court." MacQuarrie v. Balch, 362 Mass. 151, 152, 285 N.E.2d 103 (1972). Further, "[i]n construing a statute, words are to be accorded their ordinary meaning and approved usage." Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). Commonwealth v. Gove, 366 Mass. 351, 354, 320 N.E.2d 900 (1974). In keeping with approved usage, and giving terms their ordinary meaning, the word "person" is synonymous with the term "human being." An offspring of human parents cannot reasonably be considered to be other than a human being, and therefore a person, first within, and then in normal course outside, the womb. As will be shown later in this opinion, heretofore the law has not recognized that the pre-born could be the victims of homicide because of difficulties in proving the cause of death; but problems in proving causation do not detract from the personhood of the victim. By the use of the terms "person" and "the public," the Legislature has given no hint of a contemplated distinction between pre-born and born human beings. As demonstrated in Mone, no good reason for such an arbitrary distinction is apparent. Despite the fact that Mone was a civil case, we can reasonably infer that, in enacting § 24G, the Legislature contemplated that the term "person" would be construed to include viable fetuses. We so conclude, and construe the statute accordingly.

2. There is alternative reasoning to support our decision. Even if we assume that the Legislature did not consider the issue, we may assume that the Legislature intended for us to define the term "person" by reference to established and developing common law. We look to the common law as to whether a viable fetus can be the victim of a homicide and conclude that it can. We therefore conclude that a viable fetus is within the ambit of the term "person" as used in the statute.

Where the Legislature uses nonspecific terms in criminal statutes, this court frequently provides necessary construction and definition from the common law. Many examples of this recourse to the common law have particular relevance to the type of statute (vehicular homicide) we confront here. The reports are replete with our common law decisions defining the terms "murder" and "manslaughter" as used in homicide statutes. See, e.g., Commonwealth v. Matchett, 386 Mass. 492, 501-508, 436 N.E.2d 400 (1982) (a homicide committed while engaged in the commission of a felony is murder only if the circumstances demonstrate the defendant's conscious disregard of risk to human life); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771 (1980), cert. denied sub nom. Phillips v. Massachusetts, 450 U.S. 929, 101 S.Ct. 1386, 67 L.Ed.2d 360 (1981) (the infliction of injuries resulting in death after more than a year and a day is murder); Commonwealth v. Godin, 374 Mass. 120, 126-127, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978) (an employer's disregard for probable loss of life, amounting to wanton or reckless conduct and resulting in a foreseeable death is manslaughter); Commonwealth v. Golston, 373 Mass. 249, 251-256, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54 L.Ed.2d 788 (1978) (infliction of injuries resulting in "brain death" is murder); Commonwealth v. Welansky, 316 Mass. 383, 396-401, 55 N.E.2d 902 (1944) (a death resulting from a defendant's wanton or reckless disregard for the safety of his patrons is manslaughter). See also Commonwealth v. Webster, 5 Cush. 295, 303 (1850) ("[T]he statute law of the commonwealth ... nowhere defines the crimes of murder or manslaughter, with all their minute and carefully-considered distinctions and qualifications. For these, we resort to that great repository of rules, principles, and forms, the common law"). In addition, there are cases too numerous to require citation in which we have refined the definitions of the statutory terms "malice aforethought," "premeditated," and "extreme atrocity or cruelty." We have defined many of the terms used in G.L. c. 90, § 24, the parent statute of § 24G. See, e.g., Commonwealth v. Bridges, 285 Mass. 572, 189 N.E. 616 (1934) ("intoxicating liquor"); Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758 (1928) ("wilful, wanton and reckless"); Commonwealth v. Uski, 263 Mass. 22, 160 N.E. 305 (1928) ("operate"); Commonwealth v. Clarke, 254 Mass. 566, 150 N.E. 829 (1926) ("operate"); Commonwealth v. Lyseth, 250 Mass. 555, 146 N.E. 18 (1925) ("under the influence"); Commonwealth v. Henry, 229 Mass. 19, 118 N.E. 224 (1917) ("operate"); Commonwealth v. Horsfall, 213 Mass. 232, 100 N.E. 362 (1913) ("reckless"). The Appeals Court has done the same for § 24G itself. See, e.g., Commonwealth v. Glowski, 15 Mass.App. 912, 443 N.E.2d 900 (1982) ("negligently"); Commonwealth v. Drew, 11 Mass.App. 517, 523, 417 N.E.2d 53 (1981) ("cause"); Commonwealth v. Burke, 6 Mass.App. 697, 699-700, 383 N.E.2d 76 (1978) ("negligently"). See also Commonwealth v. Gordon, 15 Mass.App. 901, 901-902, 443 N.E.2d 119 (1982) (finding evidence sufficient to warrant a verdict of negligent operation so as to endanger the public), aff'd, 389 Mass. 351, 450 N.E.2d 572 (1983). We think it is clear from long usage that the process of judicial definition of statutory terms is within the expectation of the Legislature when it employs undefined terms in criminal statutes.

Many of the courts which have considered the question have decided that the destruction of a fetus should be considered a homicide but, because that rule would conflict with established precedent, have concluded that establishing such a rule requires legislative action. In so doing, these courts have relied on three interrelated rationales. ³ The defendant relies on these rationales but we reject them all as either inapplicable or unpersuasive.

First, we reject the notion that we are unable to develop common law rules of criminal law because the Legislature has occupied the entire field of criminal law. While this may be true in code jurisdictions, it is not true in this Commonwealth, where our criminal law is largely common law. For proof of this conclusion we need only look to the litany of cases cited above wherein this court has provided definitive common law rulings required by general language used by the Legislature. Language used by the Legislature controls and limits the common law prerogatives of this court but, as illustrated by the many cases cited herein and by innumerable other cases, the administration of our criminal law would be all but unworkable without the application of the common law within the limits permitted by statutory language.

Second, we reject the suggestion that, in using the term "person" in defining a statutory crime, ...