State v. Oliver, No. 87-512

Docket NºNo. 87-512
Citation563 A.2d 1002, 151 Vt. 626
Case DateJune 16, 1989
CourtUnited States State Supreme Court of Vermont

Page 1002

563 A.2d 1002
151 Vt. 626
STATE of Vermont
v.
Lawrence R. OLIVER.
No. 87-512.
Supreme Court of Vermont.
June 16, 1989.

John T. Quinn, Addison County State's Atty., Middlebury, for plaintiff-appellant.

Lawrence R. Oliver, East Middlebury, pro se.

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate Defender, Montpelier, amicus curiae.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

Defendant was charged with careless and negligent operation of a motor vehicle resulting in the death of a person, 23 V.S.A. § 1091(c). According to supporting affidavits, the accident caused the death of an in utero fetus at a gestational age of 34-35 weeks. The trial court refused to find probable cause for the charge, ruling that an unborn viable fetus is not a person within the meaning of § 1091. The State brings this interlocutory appeal, and the controlling question of law is "whether an unborn viable fetus is a person as contemplated

Page 1003

by 23 V.S.A. § 1091(c)." We answer the question in the negative.

Section 1091(c) imposes criminal penalties on any "person who, while engaged in the violation of any law, ordinance or regulation applying to the operation or use of a motor vehicle or to the regulation of traffic, causes, as a result of the violation, the death of any person...." 1 Though 23 V.S.A. § 4(27) provides a definition [151 Vt. 627] of the word "person," it does not aid in the resolution of the issue at hand. 2 Thus, when interpreting the meaning of the statute, this Court is compelled to give effect to the apparent intent of the legislature, State v. Baldwin, 140 Vt. 501, 509, 438 A.2d 1135, 1140 (1981), and must be guided by the fundamental principle that "the common law in force at the time the statute was passed is to be taken into account in construing undefined words of the statute." Meadows v. State, 291 Ark. 105, 107, 722 S.W.2d 584, 585 (1987); see also State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 742 (1985) ("Where the legislative intent to effectuate a change in the common law is clearly and plainly expressed, it will be recognized.").

The statutory predecessor to § 1091(c) first appeared as a Vermont law in 1925 as a result of a complete overhaul of the state's motor vehicle laws. 1925, No. 70, § 86. 3 In determining the legislature's intent in enacting the predecessor statute, this Court must look to the common law regarding homicide as it existed in 1925.

As far back as the 17th century, it was the prevailing view under the common law that only living human beings could be the victims of homicide. 4 The killing of a fetus did not constitute [151 Vt. 628] criminal homicide unless it was born alive and later died of injuries inflicted prior to birth. The "born alive" rule has since become and continues to remain the prevailing common law view throughout the United States. See discussions in Commonwealth v. Cass, 392 Mass. 799, 805, 467 N.E.2d 1324, 1328 (1984); Keeler v. Superior Court, 2 Cal.3d 619, 625, 470 P.2d 617, 619, 87 Cal.Rptr. 481, 483 (1970); 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.1(c), at 185 n. 13 (1986). Although this Court has never had occasion to address the issue, the "born alive" rule was widely accepted throughout the country by the time of the enactment of the statutory predecessor to § 1091(c), and must be taken into account by the Court when assigning meaning to terms contained in the statute. In light of this rule, we interpret the legislature's intent in

Page 1004

using the word "person" in § 1091(c) as limiting the application of the statute to circumstances involving the death of individuals who have already been born. 5 The death of a viable fetus falls outside of the purview of the statute. 6

[151 Vt. 629] The State argues that our recent decision in Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 143, 425 A.2d 92, 95 (1980), holding that there may be liability under Vermont's wrongful death statute for negligently causing the death of an unborn, viable fetus, requires this Court to likewise find that death of an unborn, viable fetus may form the basis of a criminal prosecution under § 1091(c). According to the State, "it ... would make no sense to determine a child's personhood, for purposes of being the victim of a crime, by reference to which side of the birth canal the child is on at the time of its victimization."

There exists, however, an important distinction between § 1091(c) and Vermont's wrongful death statute, 14 V.S.A. §§ 1491, 1492. The wrongful death statute is remedial in nature, being designed to allay the harsh common law rule denying liability due to the death of the victim, and must therefore be construed liberally. Vaillancourt, 139 Vt. at 141, 425 A.2d at 94. Penal statutes, on the other hand, are to be strictly construed in a manner favorable to the accused. In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). "The...

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29 practice notes
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...recognized a common-law action for wrongful death, see Thayer v. Herdt, 155 Vt. 448, ----, 586 A.2d 1122, 1125 (1990); State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989), we must look to the WDA to determine what damages are available for an injury to the person when the decedent......
  • State v. Hazelton, No. 04-283.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 22, 2006
    ...160 Vt. 610, 611, 648 A.2d 817, 819 (1993) (mem.). We can use the common law to interpret undefined words in a statute, State v. Oliver, 151 Vt. 626, 627, 563 A.2d 1002, 1003 (1989), but not where the Legislature defines the words it uses at variance with the common law. Most important for ......
  • Castro v. Melchor, No. CAAP–12–0000753.
    • United States
    • Court of Appeals of Hawai'i
    • January 29, 2016
    ...kill an unborn, quick child. The vehicular homicide statute is penal in nature and must be narrowly construed); State v. Oliver, 151 Vt. 626, 563 A.2d 1002, 1004 (1989) ("The wrongful death statute is remedial in nature, being designed to allay the harsh common law rule denying liabili......
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...(1981); State v. Willis, 98 N.M. 771, 652 P.2d 1222, 1226 (1982); State v. Beale, 324 N.C. 87, 376 S.E.2d 1, 4 (1989); State v. Oliver, 151 Vt. 626, 563 A.2d 1002, 1004 (1989); Lane v. Com., 219 Va. 509, 248 S.E.2d 781, 784 (1978); State ex rel. Atkinson v. Wilson, 175 W.Va. 352, 332 S.E.2d......
  • Request a trial to view additional results
29 cases
  • Clymer v. Webster, No. 88-631
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 7, 1991
    ...recognized a common-law action for wrongful death, see Thayer v. Herdt, 155 Vt. 448, ----, 586 A.2d 1122, 1125 (1990); State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989), we must look to the WDA to determine what damages are available for an injury to the person when the decedent......
  • State v. Hazelton, No. 04-283.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • November 22, 2006
    ...160 Vt. 610, 611, 648 A.2d 817, 819 (1993) (mem.). We can use the common law to interpret undefined words in a statute, State v. Oliver, 151 Vt. 626, 627, 563 A.2d 1002, 1003 (1989), but not where the Legislature defines the words it uses at variance with the common law. Most important for ......
  • Castro v. Melchor, No. CAAP–12–0000753.
    • United States
    • Court of Appeals of Hawai'i
    • January 29, 2016
    ...kill an unborn, quick child. The vehicular homicide statute is penal in nature and must be narrowly construed); State v. Oliver, 151 Vt. 626, 563 A.2d 1002, 1004 (1989) ("The wrongful death statute is remedial in nature, being designed to allay the harsh common law rule denying liabili......
  • State v. Lamy, No. 2008-189.
    • United States
    • Supreme Court of New Hampshire
    • April 8, 2009
    ...(1981); State v. Willis, 98 N.M. 771, 652 P.2d 1222, 1226 (1982); State v. Beale, 324 N.C. 87, 376 S.E.2d 1, 4 (1989); State v. Oliver, 151 Vt. 626, 563 A.2d 1002, 1004 (1989); Lane v. Com., 219 Va. 509, 248 S.E.2d 781, 784 (1978); State ex rel. Atkinson v. Wilson, 175 W.Va. 352, 332 S.E.2d......
  • Request a trial to view additional results

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