State ex rel. Atkinson v. Wilson, 16319

Citation332 S.E.2d 807,175 W.Va. 352
Decision Date18 December 1984
Docket NumberNo. 16319,16319
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Jeff ATKINSON v. Hon. Ronald E. WILSON, Judge, et al.

Syllabus by the Court

1. The legislature has the primary right to define crimes and their punishments subject only to certain constitutional limitations.

2. Neither our murder statute, W.Va.Code, 61-2-1, nor its attendant common law principles authorize prosecution of an individual for the killing of a viable unborn child.

Terrance L. Britt, Fitzsimmons & Parsons, Wheeling, for appellant.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

American Civil Liberties Union Foundation, Reproductive Freedom, Project, New York City, West Va. Civil Liberties Union, Charleston, amicus curiae.

MILLER, Justice:

The relator, Jeff Atkinson, seeks to prohibit his murder trial in the Circuit Court of Hancock County on the ground that the court is without jurisdiction to try him. In support of his request for a writ of prohibition, he argues that neither our murder statute, W.Va.Code, 61-2-1, nor its attendant common law principles provide criminal sanctions for the murder of an unborn child.

On September 23, 1981, Teri Lynn Gooch, who was approximately thirty-seven weeks pregnant, was robbed and killed in her home. According to the medical examiner, her unborn child, Mark Alan Gooch, died within minutes of her death. The relator has already been convicted of first degree murder for killing Teri Lynn Gooch. The underlying prosecution in this case is for the death of her unborn child.

The circuit court concluded that it had jurisdiction to try the relator. After acknowledging that at common law a person could not be prosecuted for the murder of an unborn child, the court reasoned that this common law rule should be modified in light of medical advances that enable a doctor to render a reliable opinion on the viability of an unborn child. The circuit court placed considerable emphasis on Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971), where we recognized that a tort action for wrongful death could be brought on behalf of a viable unborn child. 1

Because this is a legal issue of first impression in this State, we granted the petition for a writ of prohibition and issued a rule to show cause. 2 We conclude that the circuit court was without jurisdiction.

All of the parties in this proceeding agree that at common law, the killing of a viable unborn child was not murder. 3 Furthermore, the parties also agree that our murder statute, W.Va.Code, 61-2-1, 4 is not specific on this point and that we must rely on common law principles. We stated in Syllabus Point 5 of State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978), that our murder statute does not define the substantive elements of murder: "W.Va.Code, 61-2-1, was not designed primarily to define the substantive elements of the particular types of first degree murder, but rather was enacted to categorize the common law crimes of murder for the purpose of setting degrees of punishment." Similarly, in State v. Starkey, 161 W.Va. 517, 523, 244 S.E.2d 219, 223 (1978), we pointed out that: "It is clear that our murder statute is not designed to cover all the essential elements of murder." 5

The critical issue is whether we have the authority to alter the common law rule that an unborn child cannot be the victim of a murder. In Spencer v. Whyte, 167 W.Va. 772, 775, 280 S.E.2d 591, 593 (1981), we were asked to construe our probation statute so that a term of imprisonment could be given as a part of probation when the statute, W.Va.Code, 62-12-9, was silent on this subject. We declined to do so, stating:

"We have traditionally recognized that the legislature has the primary right to define crimes and their punishments subject only to certain constitutional limitations. State ex rel. Cogar v. Kidd, , 234 S.E.2d 899 (1977); State ex rel. Heck's v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950).... It is because of the legislative primacy in this area that we consider the right to determine the conditions under which a sentence can be suspended and a person placed on probation to be a legislative prerogative. Probation is inextricably tied to the setting of punishment, which is the legislature's domain." (Citations omitted).

The Virginia Supreme Court has been even more explicit by stating in Taylor v. Commonwealth, 187 Va. 214, 220, 46 S.E.2d 384, 387 (1948): "The General Assembly alone has power to define crimes against this Commonwealth. This power cannot be delegated to the courts, or to individuals, or corporations." In W. LaFave & A. Scott, supra, at 57-69, the issue of whether or not courts can create new common law crimes is discussed at length. The authors indicate that the modern view is that there is diminished authority for such a position 6 and conclude:

"It was only natural that judges should create crimes from general principles in medieval England, because such legislature as there was sat only infrequently and legislation was scanty. Today in the United States, as in modern England, the various legislatures meet regularly. The principal original reason for common law crimes has therefore disappeared." W. LaFave & A. Scott, supra, at 68-69.

In Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), we discussed at length our ability to alter common law principles in view of Section 13 of Article VIII of the West Virginia Constitution 7 and W.Va.Code, 2-1-1. 8 After a thorough review of similar enactments in other states, we concluded that:

"The historical purpose of such provisions was to declare what sources would initially constitute the organic law which would govern the body politic. We do not find any jurisdiction which adheres to the view that such provisions were adopted to freeze the common law for the courts as of the date the particular provision was enacted." 162 W.Va. at 874, 253 S.E.2d at 675. 9

Morningstar dealt with defining a rule on product liability, which is in the area of tort law. Courts, in their common law capacity, have traditionally played a major role in evolving tort principles on a case-by-case basis. We recognized this fact in Bradley v. Appalachian Power Co., 163 W.Va. 332, 350, 256 S.E.2d 879, 889 (1979), where we reexamined and altered our rule of contributory negligence, stating: "The issue falls within the field of tort law, which historically has not been a settled area of the law such as property or contracts, but has been subject to continual change by the courts and legislatures to meet the evolving needs of an increasingly mobile, industrialized and technological society." (Footnote omitted). See also Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 710-711, 289 S.E.2d 679, 687 (1982); Hill v. Joseph T. Ryerson & Son, Inc., 165 W.Va. 22, 30-31, 268 S.E.2d 296, 303 (1980); W. Prosser, Law of Torts 19-21 (4th ed. . 1971); Green, The Thrust of Tort Law: (Part I) The Influence of Environment, (Part II) Judicial Law Making, (Part III) The Scientific Environment, 64 W.Va.L.Rev. 1, 115 and 241 (1961-62).

Thus, there exists a distinction between a court's power to evolve common law principles in areas in which it has traditionally functioned, i.e., the tort law, and in those areas in which the legislature has primary or plenary power, i.e., the creation and definition of crimes and penalties. It is in this context that Baldwin, in which we recognized the right to file a wrongful death action on behalf of a viable unborn child, must be considered. This Court in Baldwin was operating in its common law tort tradition, aided by the provisions of our Wrongful Death Act, W.Va.Code, 55-7-5 through -8, which we noted has historically been liberally construed because the Act is remedial.

Furthermore, we believe there are fundamental policy reasons why it is appropriate for this Court to defer the creation of new crimes to the legislature. First, besides having the primary right to create new crimes, the legislature is composed of persons proportionately elected at more frequent intervals than are the members of this Court. Obviously, the legislature is more closely attuned to and representative of the public will than this Court. Second, in the creation and definition of a new crime, the legislature is able to make more discreet distinctions as to the degrees of the offenses and to graduate the penalties to match the severity of the offenses whereas this Court would be limited to the facts before it and could only apply the newly created crime prospectively. See Bouie v. Commonwealth, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

An excellent illustration of the legislature exercising its criminal law authority is our sexual offense statute, W.Va.Code, 61-8B-1 through -12, which supplanted W.Va.Code, 61-2-15, our former rape statute. The rape statute evolved from the common law and provided hardly any graduation in the offense. As a consequence, rape convictions were difficult to obtain. See State v. Reed, 166 W.Va. 558, 563, 276 S.E.2d 313, 317-18 (1981). 10

We have on occasion altered common law rules in the criminal field, but in these cases the alteration was of a procedural nature and did not create a new class or category of crime. For example, in State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980), we concluded that aiders and abettors and accessories before the fact could be indicted as principals in the first degree. Part of our reasoning was based on the fact that the legislature had abolished any distinction between these categories by mandating that the punishment be the same for each of the categories. W.Va.Code, 61-11-6. In State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), we concluded that venue in a criminal case is not an element of the substantive criminal offense and, therefore, it may be...

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