Com. v. Morris, 2002-SC-0845-DG.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtCooper
Citation142 S.W.3d 654
PartiesCOMMONWEALTH OF KENTUCKY, Appellant, v. Christopher Charles MORRIS, Appellee.
Docket NumberNo. 2002-SC-0845-DG.,2002-SC-0845-DG.
Decision Date17 June 2004
142 S.W.3d 654
Christopher Charles MORRIS, Appellee.
No. 2002-SC-0845-DG.
Supreme Court of Kentucky.
June 17, 2004.
Rehearing Denied September 23, 2004.

Appeal from the Circuit Court, Pike County.

Gregory D. Stumbo, Attorney General, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant.

Stephen W. Owens, Pikeville, Counsel for Appellee.

Francis J. Manion, American Center for Law and Justice-Midwest, Geoffrey R.

[142 S.W.3d 655]

Surtees, Center for Law and Justice for Catholics United for Life, New Hope, Counsel for Amicus Curiae American Center for Law and Justice.

Robert C. Cetrulo, Northern Kentucky Right to Life, Covington, Counsel for Amici Curiae Northern Kentucky Right to Life; and Kentucky Coalition for Life.

COOPER, Justice.

On March 15, 2001, Troy Thornsberry and his pregnant wife, Veronica Jane Thornsberry, were en route to Pikeville Methodist Hospital for the anticipated birth of their unborn child when their vehicle was struck by a pickup truck operated by Appellee, Christopher Charles Morris. Mr. Thornsberry was injured in the collision; his wife and unborn child were killed. A post-mortem examination revealed that the child was a viable fetus who would have been born a healthy baby girl had she not sustained a fatal brain injury in the collision.1

A Pike County grand jury indicted Appellee for one count of assault in the first degree, KRS 508.010(1)(b), for causing Mr. Thornsberry's injuries, and two counts of wanton murder, KRS 507.020(1)(b), for causing the deaths of Mrs. Thornsberry and her unborn child. When the Pike Circuit Court refused to dismiss the charge pertaining to the death of the unborn child, Appellee accepted a plea offer pursuant to which he entered guilty pleas to reduced charges of assault in the second degree, KRS 508.020(1)(c), and manslaughter in the second degree, KRS 507.040(1)(a), with respect to the injury of Mr. Thornsberry and the death of Mrs. Thornsberry, and a conditional guilty plea to manslaughter in the second degree with respect to the death of the unborn child. RCr 6.16; RCr 8.08; RCr. 8.09. He was sentenced to concurrent terms of ten years in prison for each conviction and appealed only the conviction arising from the death of the unborn child.

The Court of Appeals reversed, holding that the common law "born alive" rule, which Hollis v. Commonwealth, Ky., 652 S.W.2d 61 (1983), had applied to the homicide offenses defined in KRS Chapter 507 of the Kentucky Penal Code, precluded a homicide conviction for killing an unborn child. We granted discretionary review to reconsider Hollis.

The Commonwealth presents two arguments: (1) that the "born alive" rule has been superseded by the statutory definition of "human being" in the abortion statutes, i.e., KRS 311.720(6), viz: "`Human being' shall mean any member of the species homo sapiens from fertilization until death;" or, in the alternative, (2) that the "born alive" rule is an anachronism that should not be applied when the victim is a viable fetus. Because the rationale for the "born alive" rule no longer exists, we agree that the rule should be discarded. We hold that the felonious killing of a viable fetus can be prosecuted as a homicide under Chapter 507 of our penal code. However, because Due Process precludes retrospective application of that holding, we are required to affirm the result reached by the Court of Appeals.


The earliest commentator on the common law of England suggested that the killing of a fetus, or at least a "quickened" fetus, was a homicide.

If there be anyone who strikes a pregnant woman or gives her a poison

142 S.W.3d 656

whereby he causes an abortion, if the foetus be already formed or animated, especially if it be animated, he commits homicide.

III Henry de Bracton, The Laws and Customs of England, ii., 4 (circa 1274), as translated from the original Latin into English by Cyril C. Means, Jr., The Law of New York Concerning Abortion and the Status of the Foetus, 1660—1968: A Case of Cessation of Constitutionality, 14 N.Y.L.F. 411, 419 (1968). Bracton cited no authority for his proposition2 and it was not followed in two subsequent anonymous cases before the King's Bench during the reign of Edward III. In the first case, reported in Year Book Michaelmas (Y.B.Mich.), 1 Edw. 3, f. 23, pl. 18 (1327) and dubbed The Twinslayer's Case by Professor Means, the accused supposedly had beaten a woman who was in the advanced stages of pregnancy with twins. One of the twins died in the womb. The other was born alive but died shortly thereafter, allegedly as a result of the beating. The accused was acquitted of killing both twins. Means, The Phoenix of Abortional Freedom, supra note 2, at 337 (providing English translation of original French text). The holding with respect to the twin who was born alive but later died was subsequently rejected by Coke, infra, and by later English courts. Rex v. Senior, 1 Moody 346, 168 Eng. Rep. 1298 (Cr.Cas.Res.1832); Regina v. West, 2 Cox's Cases in Crim. L. 500 (Nottingham Spring Assizes 1848). See also Jones v. Commonwealth, Ky., 830 S.W.2d 877, 878-79 (1992) (conviction of manslaughter in the second degree affirmed where victim was born alive but subsequently died of injuries inflicted in utero).

The second case rejecting sub silentio Bracton's proposition was reported by Sir Anthony Fitzherbert in Graunde Abridgement, tit. Corone, f. 268, pl. 263 (1st ed. 1516), f. 255, pl. 263 (3d ed. 1565) (Y.B. Mich., 22 Edw. 3 (1348)), and dubbed The Abortionist's Case by Professor Means. The accused was charged with killing a child in its mother's womb but was acquitted partially because "it is difficult to know whether he killed the child or not." Means, The Phoenix of Abortional Freedom, supra note 2, at 339. Thus, "`[i]f the child be destroied in the mothers belly, the destroier is no manslayer, nor Felone.'" Id. at 342 (quoting William Lambarde, Eirenarcha, or of The Office of the Justices of the Peace 217-18 (2d ed. 1582)). The reason for the rule was "non constat [it could not be established], whether the child were living at the time of the batterie or not, or if the batterie was the cause of death." Sims's Case, Gouldsborough 176, pl. 110, 75 Eng. Rep. 1075 (K.B.1601).

Coke's now-famous enunciation of the "born alive" rule is as follows:

If a woman be quick with childe, and by a Potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder: but if the childe be born alive, and dieth of the

142 S.W.3d 657

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.

Sir Edward Coke, Third Institute 50-51 (1644).3 The rule was repeated in later British treatises. 1 William Hawkins, Treatise of the Pleas of the Crown, ch. 31, § 16, at 80 (1716); Matthew Hale, History of the Pleas of the Crown 433 (1736); 1 William Blackstone, Commentaries 129-30 (1765).

The "born alive" rule is reported to have first been applied in the United States in Commonwealth v. McKee, 1 Add. 1 (Pa. 1791). See Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 Val. U.L.Rev. 563, 598 (1987). Prior to legislative reform, it was almost universally applied. See Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 849 (2001), and cases cited therein. The rule continued to be one of necessity. As late as the nineteenth century, prior to quickening, "it was virtually impossible for either the woman, a midwife, or a physician to confidently know that the woman was pregnant, or, it follows, that the child in utero was alive." Forsythe, supra, at 573. Hence, there was no evidence of life until quickening. Id. Even quickening did not constitute proof that the fetus was alive at any particular moment thereafter. The health of a fetus could not be determined until after its birth. Id. at 575. "As a result, live birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts." Id.

The "born alive" rule first entered Kentucky's jurisprudence in the pre-penal code case of Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936).

"[I]n order to establish the corpus delicti, in a case of infanticide, it must also be established that the child was born alive. In the absence of proof that the child had ever breathed or was alive at birth a conviction can not be sustained. It is necessary for the Commonwealth to prove affirmatively, not only that the child had breathed, because that might occur during birth, but that it had had a complete and separate existence of its own after birth. Being born means that the whole body is brought into the world, and it is not sufficient that the child breathes in the progress of the birth. But if a child is fully brought forth from the body of its mother, and is killed while still connected by the umbilical cord, it is murder. When the evidence that the child was born alive is susceptible of doubt, a conviction can not be sustained."

Id., 96 S.W.2d at 1014-15 (emphasis added) (quoting James M. Roberson, New Kentucky Criminal Law and Procedure § 425 (2d ed.1927)). Jackson, a murder case, held that the Commonwealth had established the corpus delicti through "[t]he testimony of the physicians, together with that of the accused. . . ." Id. at 1016. Thus, as first applied in Kentucky, the "born alive" rule pertained to the sufficiency of the evidence needed to support a conviction of homicide, not the interpretation of a statute. See also Forsythe, supra, at 586 (The "born alive" rule "is...

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  • State Of Conn. v. Courchesne, No. 17174.
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    • June 15, 2010
    ...which “a viable fetus can be the victim of a homicide,” regardless of whether it is born alive. (Emphasis added.) Commonwealth v. Morris, 142 S.W.3d 654, 660 (Ky.2004); see also, e.g., Hughes v. State, 868 P.2d 730, 731 (Okla.Crim.App.1994) (viable fetus is “human being” under statute defin......
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    • June 15, 2010
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