People v. Guthrie

• Decision Date: 24 April 1980
• Docket Number: Docket No. 44957
• Citation: 293 N.W.2d 775,97 Mich.App. 226
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas Arthur GUTHRIE, Defendant-Appellee. 97 Mich.App. 226, 293 N.W.2d 775
• Court: Court of Appeal of Michigan — District of US

Page 775

293 N.W.2d 775

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas Arthur GUTHRIE, Defendant-Appellee.

Docket No. 44957.

97 Mich.App. 226, 293 N.W.2d 775

Court of Appeals of Michigan.

April 24, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 227] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Burton Hines, Jr., Pros. Atty., Thomas C. Nelson, Pros. Atty. App. Service, Lansing, for plaintiff-appellant.

Roger L. Wotila, Cadillac, for defendant-appellee.

Before ALLEN, P. J., and CAVANAGH and SIMON, ^* JJ.

PER CURIAM.

Did the trial court err in dismissing a charge of negligent homicide, M.C.L. § 750.324; M.S.A. § 28.556, against defendant on grounds that the death of an unborn but viable nine month fetus was not equivalent to the death of "another" within the meaning of that term as used in the statute? This question of first impression in Michigan arises on the following facts.

On August 8, 1978, at approximately 5:00 p. m., defendant drove his pickup truck across four lanes of traffic on US 131 in Cadillac striking an automobile being driven by Brenda Tucker in the northbound curb lane. The collision caused Mrs. Tucker's abdomen to impact with her vehicle's steering wheel. At the time of the accident, Brenda Tucker was nine months pregnant and was scheduled to enter the hospital the next day in preparation for a caesarean delivery on August 10, 1978.

Shortly after the accident an emergency caesarean section was performed and a stillborn infant was delivered. Autopsy revealed the infant weighed seven pounds, was "ready for birth" with all organs "normal" except there had been no expansion of the lungs. The pathologist stated that [97 MICHAPP 228] he found no evidence of trauma directly to the infant but that the placenta and the vessels of the umbilical cord had been torn. Both the pathologist and the obstetrician who performed the caesarean stated that the infant had bled to death.

Defendant was charged with negligent homicide contrary to M.C.L. § 750.324; M.S.A. § 28.556. After being bound over to circuit court on the offense charged, defendant moved to quash the information on grounds that the statute did not apply to unborn fetuses. A hearing was held on the motion February 8, 1979, before Circuit Judge William R. Peterson. On March 15, 1979, Judge Peterson issued a written opinion granting defendant's motion on grounds that a fetus was not a "person" within the meaning of the negligent homicide statute. ¹ Charges were dismissed against defendant by order entered April 30, 1979. The people appeal of right.

Michigan's negligent homicide statute reads:

"Any person who, by the operation of any vehicle [97 MICHAPP 229] upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment." (Emphasis supplied.)

The crucial word, the meaning of which we must determine, is the word "another". Because "another" refers back to the word "person", the question presented is whether an unborn but admittedly viable fetus is a "person" as that word is used in the statute. The statute was first enacted as 1921 P.A. 98, and was reenacted as 1931 P.A. 328. Since that time, it has been amended in minor respects not relevant to the question before us. From the date of the first enactment until the present time that portion of the statute which is emphasized above has remained unchanged.

The common-law rule, in effect when the statute was adopted in 1921, was that there could be no homicide without a living human being the victim. The killing of an unborn child was not a homicide at common law for the reason that the fetus was not considered a "person" or "a reasonable creature in being" before its birth. It was necessary that the child be "born alive" and exist independently of its mother's body before it could be considered a "person". Anno.: Homicide Based on Killing of Unborn Child, 40 A.L.R.3d 444, § 2, p. 446; 40 Am.Jur.2d, Homicide, § 9, p. 300; Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420 (1970). The history, development and continuing vitality of the "born alive" rule is well summarized[97 MICHAPP 230] in LaFave & Scott, Criminal Law, § 67, pp. 530-531 as follows:

"When Does Life Begin?

"It is a general requirement of the law of homicide that the victim be a living human being. Shooting a dead body is not homicide, although it may be another crime. The question of life arises most frequently in the cases involving destruction of the human fetus. At early common law the fetus was considered alive thirty to eighty days after conception. By the mid-seventeenth century, however, it was no crime to abort, with the consent of the mother, a fetus which had not 'quickened,' an event that occurs four to five months after conception. Even then, the killing of the fetus was not homicide unless the fetus had been 'born alive.' Being 'born alive' required that the fetus be totally expelled from the mother and show a clear sign of independent vitality, such as respiration, although respiration was not strictly required.

"In the United States the 'born alive' requirement has come to mean that the fetus be fully brought forth and establish an 'independent circulation' before it can be considered a human being. Proof of live birth and death by criminal agency are required beyond a reasonable doubt to sustain a homicide conviction. 'Independent circulation' can be established by evidence of the fetus having breathed, but such proof usually is not conclusive in the absence of the evidence of life, such as crying. * * *

" * * * The difficulty of proof of live birth has led some jurisdictions to define the fetus as a person for purposes of the homicide statute, or to define person so as to exclude the fetus." (Emphasis supplied, footnotes omitted.)

The people frankly admit the existence of the "born alive" rule, but urge that the time is long overdue for its rejection. In support of this position the people advance two arguments. First, for purposes of an action in tort, recent Michigan case [97 MICHAPP 231] law has held that parents of an unborn but viable fetus may maintain a wrongful death action on behalf of the fetus. O'Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971). More recently, in sustaining the constitutionality of the Assaultive Abortion statute ² or the Manslaughter by Abortion statute ³, a similar position was adopted.

"We hold that the word child as used in MCLA 750.322; MSA 28.544, and MCLA 750.323; MSA 28.555, means a viable child in the womb of its mother; that is, an unborn child whose heart is beating, who is experiencing electronically measurable brain waves, who is discernably moving, and who is so far developed and matured as to be capable of surviving the trauma of birth with the aid of the usual medical care and facilities available in the community." (Emphasis supplied.) Larkin v. Wayne Prosecutor, 389 Mich. 533, 541-542, 208 N.W.2d 176 (1973).

Second, the "born alive" rule is an archaic legal fiction which no longer serves a legitimate objective. Plaintiff's excellent brief expresses this point of view as follows:

"The emergence of viability as a medically distinct developmental stage has mooted the Hobson's choice between quickening and birth. In terms of an independent existence, viability is the most important event after conception. Quickening merely indicates a perception of movement and has virtually no significance from [97 MICHAPP 232] a developmental perspective. Birth terminates gestation, but is simply a continuation of viability in a new environment. Once the fetus reaches viability, it is virtually indistinguishable, physiologically, from the newborn infant. * * *

"Moreover, birth itself is no longer a violent perilous adventure. Current statistics indicate that the fetal survival rate after twenty weeks of gestation is ninety-nine percent (99%). * * * This compares with an infant survival rate of 98.5%. Thus, after five months of pregnancy, survival is virtually certain, or at least as certain as survival through the first postnatal year.

"In this context, the 'live birth' rule is an anachronism. Its original expediency and practicality has evaporated in the light of modern science and experience. Only its arbitrary, inflexible character remains."

This panel agrees that the "born alive" rule is outmoded, archaic and no longer serves a useful purpose. Modern medical practice has advanced to the point that, unlike the situation when the rule was first developed, the vast majority of viable fetuses will, in the absence of some unexpected event, be born alive and healthy. Further, medical technology can now accurately determine the stages of fetal development and viability. This being so, birth itself in terms of emergence from the mother's body should no longer be held determinative. We further acknowledge that for purposes of actions in tort for wrongful death, recovery may be had even if a viable fetus was yet unborn.

But our concession in these respects does not lead us to conclude that it is within the province of this Court to reverse the trial court. It is one thing to mold, change and even reverse established principles of common law in civil matters. It is quite another thing to do so in regard to criminal statutes. As long ago as 1886 the Supreme Court [97 MICHAPP 233] stated that "(w)hatever elasticity there may be in civil matters, it is a safe and necessary rule that criminal law should not be tampered with except by legislation". In the Matter of Lamphere, 61 Mich. 105, 108, 27 N.W. 882 (1886). Almost 100 years later this Court reaffirmed...