State in Interest of A. W. S.
| Decision Date | 17 December 1981 |
| Citation | 440 A.2d 1144,182 N.J.Super. 278 |
| Parties | STATE of New Jersey In the Interest of A. W. S., Juvenile-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Christine F. Kirkpatrick, Asst. Bergen County Prosecutor, for appellant (Roger W. Breslin, Jr., Bergen County Prosecutor, attorney; Christine Kirkpatrick of counsel and on the brief).
Seymour Chase, Hackensack, for juvenile-respondent (Chase & Chase, attorneys; Bruce Evan Chase, Hackensack, of counsel and on the letter brief).
Before Judges MICHELS, McELROY and J. H. COLEMAN.
The judgment of the Bergen County Juvenile and Domestic Relations Court dismissing the complaint charging the juvenile A.W.S. with criminal homicide for causing death by auto, in violation of the provisions of N.J.S.A. 2C:11-2 and N.J.S.A. 2C:11-5, is affirmed substantially for the reasons expressed by Judge Polito in his opinion reported in State in the Interest of A.W.S., 182 N.J.Super. 334, 440 A.2d 1174 (J. & D.R.Ct.1980). The holding by the trial court that an unborn fetus is not a "human being" within the meaning of the criminal homicide provisions of the New Jersey Code of Criminal Justice is in accord with the overwhelming weight of authority throughout this country. See, e.g., Keeler v. Superior Court of Amador Cty., 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (Sup.Ct.1970); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (Sup.Ct.1980); People v. Gutherie, 97 Mich.App. 226, 293 N.W.2d 775 (Ct.App.1980); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599 (Sup.Ct.1971). See also, Annotation Homicide Based on Killing of Unborn Child, 40 A.L.R.3d 444 (1971).
Moreover, we are satisfied that the legislative history of the criminal homicide provisions of the Code of Criminal Justice, L.1978, c. 95, § 2C:1-1 et seq., is persuasive evidence that the trial judge properly construed the term "human being" set forth in N.J.S.A. 2C:11-2. In the Final Report of the New Jersey Criminal Law Revision Commission (1971), which was submitted for consideration to our Legislature, the criminal homicide provisions contained a definition of the term "human being." N.J.S.A. 2C:11-1(a) of the proposed draft defined "human being" as "a person who has been born and is alive." The commentary to this section of the proposed draft noted that:
The definition of "human being" set forth adopts the common-law definition which has been the law of New Jersey and which excludes the killing of a fetus from homicide. See In Re Vince, 2 N.J. 443, 450 (67 A.2d 141) (1949); State v. Cooper, 22 N.J.L. 52 (Sup.Ct.1849); State v. Murphy, 27 N.J.L. 112, 114 (Sup.Ct.1858). An earlier draft of our Code would have included as human beings a person "who is alive and includes a viable fetus." This would have included as homicides situation such as that set forth in Keeler v. Superior Court, (2) Cal.2d (3d 619), (87) Cal.Rptr. (481, 470 P.2d 617) (Sup.Ct. June 12, 1970) 80 Cal.Rptr. 865 (Ct.App.1969) where a viable fetus was purposely stomped from its mother by the defendant. California, following the common law rule, held this not to be homicide as to the fetus. Change, if appropriate, was thought to be for the Legislature. We do not recommend the change because of (1) the problems in determining viability, (2) the problems in distinguishing abortions which should not be treated as homicides and, (3) while purposeful killings of viable fetuses perhaps should be homicide, reckless and negligent killings probably should not. The feeling of terror raised in the community is not present where the victim of a homicide is a fetus. Conviction of a defendant as in the Keeler situation of aggravated assault, which under our Code would be a crime of the second degree, seems sufficient. (Id., vol. II: Commentary at 150)
The definition of "human being" contained in the proposed draft, however, was deleted from the version of the Code which was eventually adopted and enacted into law. See N.J.S.A. 2C:11-1. The proposed draft provisions of N.J.S.A. 2C:11-1(a) and the commentary with respect thereto make it eminently clear that our Legislature was cognizant of the status of the case law of this State which has excluded fetuses not born alive from the scope of the prior criminal homicide statutes, and that any change in that law should be effectuated by legislative action. It seems plain, therefore, that at the very least the issue of whether unborn fetuses should be protected or not was considered and rejected when the Code was enacted in its final form.
Finally, we point out that it may well be that the present state of medical knowledge has advanced to the point where it could be established that the fetus in this case was a viable child who could live separate and apart from his mother, so that emergence from the mother's body should no longer be the determinative factor in classifying the fetus as a human being for purposes of criminal homicide. It is not, however, within our province to judicially legislate on this issue, particularly in view of the fact that it recently has been considered and rejected by our Legislature. In this regard, the method by which the Michigan Court of Appeals disposed of this issue in People v. Gutherie, supra, is worthy of being repeated here:
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...
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