People v. Guthrie

• Citation: 417 Mich. 1006,334 N.W.2d 616
• Decision Date: 15 June 1983
• Docket Number: No. 65171,65171
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas Arthur GUTHRIE, Defendant-Appellee. 417 Mich. 1006, 334 N.W.2d 616
• Court: Supreme Court of Michigan

Page 616

334 N.W.2d 616

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

No. 65171.

417 Mich. 1006, 334 N.W.2d 616

Supreme Court of Michigan.

June 15, 1983.

ORDER

On order of the Court, 97 Mich.App. 226, 293 N.W.2d 775, this cause having been briefed and argued on leave granted, IT IS HEREBY ORDERED that the order of October 10, 1980, granting leave to appeal is VACATED and leave to appeal is DENIED for the reason that the Court is no longer persuaded that the questions presented should be reviewed by this Court.

This disposition of this case was reached by the Court in conference on December 1, 1982, and this order is entered nunc pro tunc as of that date.

RYAN, Justice (dissenting).

My colleagues are of the view that leave to appeal was improvidently granted in this case. I am not, and dissent.

At five o'clock in the evening on the day before she was scheduled to enter the hospital for a Caesarean Section delivery of her unborn child, Brenda Tucker was driving her motor vehicle northbound on US 131 in the City of Cadillac. A pickup truck, operated by the defendant in a southerly direction on US 131, crossed four lanes of traffic, including the centerline, and struck Mrs. Tucker's vehicle head-on. Mrs. Tucker was thrown against the steering wheel of the car, impacting her abdomen.

Mrs. Tucker was taken from the scene of the accident to a hospital where an emergency Caesarean Section was performed and her male infant child was delivered stillborn. The infant's death, according to expert testimony at the preliminary examination, was the result of loss of blood due to tearing of the placenta and the umbilical cord.

At the time of the accident, Mrs. Tucker was nine months pregnant. She had felt the movement of her child earlier in the day and had listened to his heartbeat on the previous Friday. Expert medical testimony at the preliminary examination revealed that, at the time of his death, the unborn child was "ready for birth" and "was a full-term infant".

The defendant was charged with negligent homicide, contrary to M.C.L. Sec. 750.324; M.S.A. Sec. 28.556, which provides:

"Any person who, by the operation of any vehicle 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 a misdemeanor, punishable by imprisonment in the state prison not more than two years or by a fine of not more than $2000, or both such fine and imprisonment."

Following a preliminary examination, the defendant was bound over to the circuit court for trial. The defendant's pretrial motion to quash the information was granted by the circuit court for the reason, according to the court, that a fetus is not a "person" within the meaning of the negligent homicide statute. The prosecutor has appealed the dismissal of the case, first to the Court of Appeals and now to this Court.

The Court of Appeals affirmed the trial court's dismissal of the case, declaring that at the common law the "killing of an unborn child was not a homicide * * * for the reason that the fetus was not considered a 'person' * * * 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'." 97 Mich.App. 226, 293 N.W.2d 775 (1980). Although it declared that the "born alive" rule is "outmoded, archaic and no longer serves a useful purpose" because, inter alia, "medical technology can now accurately determine the stages of fetal development and viability", the Court of Appeals felt bound to follow the "born alive" rule until changed by the Legislature.

The "born alive" rule is generally attributed to Sir Edward Coke who, in a seventeenth century treatise entitled, Third Institute, declared:

"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 dyeth in her body, and she is delivered of a dead childe, this is a great misprison, 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." Third Institute, p 50 (1644).

The "rule" is generally understood to derive from the impossibility, 300 years ago, of determining whether and when a fetus was living and when and how it died, and the consequent necessity to preclude the fundamental inquiry whether a fetal death was a human death.

To hold as a matter of law in the waning years of the twentieth century that the question of the personhood or humanity of a viable unborn child in the ninth month of gestation is governed by a common law rule of proof invented by the venerable but fallible ¹ Sir Edward Coke in the seventeenth century, to accommodate the medical and scientific impossibility of then proving the viability of a fetus, is disingenuous reasoning in the extreme.

At the time of Sir Edward Coke's ipse dixit, the only evidence available of the humanity of a victim of a homicide was evidence of live birth. That evidence, therefore, was what was required in any homicide growing out of an attack upon a fetus. It is plain, indeed axiomatic, that there is a great deal of other medical evidence available today to demonstrate that a viable unborn child is a human being, susceptible to death by homicide. ² The facts of the case before us, particularly the expert and unchallenged testimony of the two physicians who testified at the preliminary examination concerning the condition of Mrs. Tucker's unborn child, present eloquent if tragic proof of that which medical science has long ago established, irrefutably: the humanness of the viable unborn child.

In addition, the personhood of a viable unborn child has been accepted beyond peradventure in the jurisprudence of this state.

For purposes of the civil law, this Court held in O'Neill v. Morris, 385 Mich. 130, 137, 188 N.W.2d 785 (1971), that an unborn child in the eighth month of gestation, killed by the tortious act of another, was a "person" within the meaning of the wrongful death statute, M.C.L. Sec. 600.2922; M.S.A. 27A.2922, for whose death damages, if proved, were recoverable.

Concerning the objection advanced in that case, as it is in this one, that a child is not a person unless he is "born alive", the Court said:

"The instructive dissent of Mr. Justice Boggs, in Allaire v. St. Lukes Hospital, 184 Ill. 359, at 368, 56 N.E. 638, was written in 1900. His view has been largely adopted in this country.

"The majority in that case held:

" 'That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed.'

"Justice Boggs wrote:

" 'Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother.' "

"The phenomenon of birth is not the beginning of life; it is merely a change in the form of life. The principal feature of that change is the fact of respiration. But the law does not regard the incidence of respiration as the sole determinative of life. Respiration can be artificially induced or mechanically supplied. Life remains." 385 Mich. at 136, 188 N.W.2d 785.

For purposes of the criminal law, this Court in Larkin v. Wayne County Prosecutor, 389 Mich. 533, 208 N.W.2d 176 (1973), stated:

"We hold that the word child as used in M.C.L. Sec. 750.322; M.S.A. Sec. 28.554 [willful Killing of Unborn Quick Child] and M.C.L. Sec. 750.323; M.S.A. Sec. 28.555 [Death of Quick Child * * * From the Use of Medicine * * * With Intent to Destroy Such Child] 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...