State v. Soto

• Decision Date: 06 December 1985
• Docket Number: No. C1-85-1161,C1-85-1161
• Citation: 378 N.W.2d 625
• Parties: STATE of Minnesota, Appellant, v. John (NMN) SOTO, Respondent.
• Court: Minnesota Supreme Court

Page 625

378 N.W.2d 625

STATE of Minnesota, Appellant, v. John (NMN) SOTO, Respondent.

No. C1-85-1161.

Supreme Court of Minnesota.

Dec. 6, 1985.

Syllabus by the Court

1. The words "human being" as used in Minn.Stat. § 609.21, subd. 1 (1984), do not encompass a viable fetus capable of sustained life outside of the womb of the mother.

2. If the vehicular homicide statute (Minn.Stat. § 609.21, subd. 1 (1984)) is to be expanded so as to encompass in its victim definition a viable fetus, such expansion is within the sole function and discretion of the state legislature.

Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey Co. Atty., Steven C. DeCoster, Asst. Co. Atty., St. Paul, for appellant.

Stephen W. Cooper, Salvador M. Rosas, Neighborhood Justice Center, St. Paul, for respondent.

Douglas Peine, Janlori Goldman, Legal Counsel, Minneapolis, Nan D. Hunter, Janet Benshoof, Suzanne M. Lynn, New York City, for amicus curiae Minn. Civil Liberties Union.

Heard, considered and decided by the court en banc.

KELLEY, Justice.

The Ramsey County Grand Jury indicted the respondent John Soto for the death of an 8 1/2 month old fetus. Counts III and IV of the indictment charged him with causing the death by negligent operation of a motor vehicle while under the influence of alcohol and while having a blood alcohol concentration of 0.10 or more in violation of Minn.Stat. § 609.21 (Minn.1984). Holding that an 8 1/2 month old viable fetus capable of sustained life outside the womb of the mother was not a "human being" within the meaning of the statute, the Ramsey County District Court dismissed the two counts. We affirm. ¹

On November 8, 1984, while operating a motor vehicle in the city of St. Paul, the respondent John Soto, when allegedly under the influence of intoxicating liquor and at a time he had a blood alcohol concentration of more than 0.10, negligently drove into an intersection, violently striking a vehicle operated by Mrs. Jannet Anne Johnson who was at the time 8 1/2 months pregnant. ²

Mrs. Johnson sustained a fractured pelvis and a fracture of the left femur, among other injuries. On arrival at the hospital following the accident, a physician, using ultra sound procedures, determined that the heartbeat of the fetus and its position in the uterus were not abnormal. Several hours later, however, the fetal heartbeat was not detectable indicating the child had died in utero. A subsequent Caesarean section resulted in a stillbirth. The fetus, a male, was normally developed and from 36 to 38 weeks in estimated age. The normal delivery time for a human fetus is 40 gestational weeks. An autopsy performed by the Ramsey County Medical Examiner resulted in a final diagnosis of "intercranial hemorrhage associated with closed head trauma." The medical examiner determined the stillbirth was only attributable to the head injuries the fetus had sustained in the collision.

The Ramsey County Grand Jury returned a four count indictment charging violation of Minn.Stat. § 609.21 (1984). Counts I and II charged criminal vehicular operation resulting in injury to Mrs. Johnson. Counts III and IV charged criminal vehicular operation resulting in death of the unborn child. In moving to dismiss Counts III and IV of the indictment, the defendant claimed that a motorist could not be convicted of criminal vehicular operation resulting in death unless the death was that of a "human being" and that the "human being" requirement could only be satisfied by proof the victim was "born alive and had an independent and separate existence from his mother." ³ As indicated, the trial judge agreed with this contention, ⁴ and thus the sole issue on appeal is whether a viable fetus capable of sustained life outside the womb is a "human being" within the meaning of Minn.Stat. § 609.21, subd. 1 (1984).

In the United States some jurisdictions recognize common law crimes as well as those crimes defined and proscribed by legislative enactment. Such states are known as "common law" states. Other states of the union have abolished common law crimes either by statute or constitution, and have provided that no act or omission constitutes a crime unless defined by statute. Such jurisdictions are known as "code states." Minnesota is a "code state." Minn.Stat. § 609.015 (1985). ⁵ Thus, in Minnesota, the legislature has exclusive province to define by statute what acts shall constitute a crime and to establish sanctions for their commission. State v. Olson, 325 N.W.2d 13, 17-18 (Minn.1982); State v. Forsman, 260 N.W.2d 160, 164 (Minn.1977). Notwithstanding abolishment of common law crimes, Minn.Stat. § 609.015, subd. 1 (1984) suggests that it is not impermissible to use common law rules of construction in the interpretation of penal statutes, but only in aid of statutory construction. Forsman, 260 N.W.2d at 164; State v. Hayes, 244 Minn. 296, 70 N.W.2d 110, 112-113 (1955). Moreover, Minn.Stat. § 645.08(1)(1984) directs that words and phrases as used in statutes are to be construed according to their common and approved usage. See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 543 (Minn.1983).

From the earliest days of statehood this court has followed a long tradition of strictly construing penal statutes. A criminal offense should not be created by an uncertain and doubtful statutory construction. In the presence of any doubt, penal statutes are to be construed so as not to multiply felonies. See United States v. Gideon, 1 Minn. 292, 296 (Gil.226) (1856). The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of "judicial construction." State v. Mims, 26 Minn. 191, 2 N.W. 492 (1879). See also State v. Haas, 280 Minn. 197, 159 N.W.2d 118, 121 (1968); State v. End, 232 Minn. 266, 45 N.W.2d 378, 382 (1950).

With those general principles in mind, we turn, then, to an examination of our vehicular homicide statute (Minn.Stat. § 609.21, subd. 1 (1984)). That statute uses the phrase "causes the death of a human being." Although it has never precisely been defined by statute, the term "human being" has been used in Minnesota homicide statutes since territorial days. See, e.g., Public Statutes, ch 89, § 1 (1849). ⁶ The term "human being" was used in the state's first vehicular homicide statute, 1937 Minn.Laws, ch. 464, § 25, first codified in the highway code at Minn.Stat. § 169.11 (1941). The term "human being" has been used repeatedly in subsequent modifications of that statute. See Minn.Stat. § 609.21 (1965), the "criminal negligence resulting in death" statute. Finally, the legislature amended the vehicular homicide provisions in 1983 and 1984 to make them read as they now exist.

Because none of the homicide statutes provide a statutory definition of the term "human being," under Minn.Stat. § 609.015 (1984) this court may refer to common law rules as an aid to construction or interpretation of the phrase as it is used in the vehicular homicide statute.

At common law it is clear that only a living human being could be the victim of a homicide. To become a human being within the meaning of homicide statutes at common law, a child had to be born alive and have an existence independent of and separate from its mother. See W. LaFave and A. Scott, Criminal Law 530-32 (1972); 40 C.J.S. Homicide § 2b (1944); 2 C. Torcia, Wharton's Criminal Law 95-96 (1979). The "born alive" rule dates back to at least the 17th century when the great common lawyer, Sir Edward Coke, wrote that the killing of an unborn quickened child "is a great misprision and no murder." 3 Coke Institutes 58 (1648). The courts and commentators accepted Coke's views as authoritative on the common law. The "born alive" requirement was reiterated by Blackstone in 1 Blackstone Commentaries 129-130 (1765). As has been elsewhere thoroughly documented, Blackstone had tremendous impact on the development of the common law in the original American colonies and in the early states of this new country. By 1850, the "born alive" rule had widespread general acceptance by all jurisdictions in the United States which had considered the issue.

We have been informed by brief and in oral argument, that of 25 jurisdictions in the United States which have considered the issue, both in so-called "common law" and in so-called "code" states, 23 have adopted the "born alive" rule. ⁷ From the foregoing it is clear that the common law "born alive" rule is now well-established in the great majority of jurisdictions. In many jurisdictions the rule existed long before enactment of the vehicular homicide statutes by our own legislature.

While neither commentaries by renowned common law authorities nor precedents from foreign jurisdictions with respect to the interpretation of the words, "human being" are binding on us by principles of stare decisis, they are of considerable persuasion, particularly in view of their near unanimity. This court has never specifically addressed the issue. However, in connection with a different homicide statute (Minn.Stat. § 609.19(1) (1984)) in which the victim definitional phrase "human being" is used, we did indirectly acknowledge the "born alive" rule. See State v. Kinsky, 348 N.W.2d 319 (Minn.1984). In affirming a conviction of a mother for an infant homicide, we noted:

[T]here exists authority that the state must prove that the infant was 'born alive and had an independent and separate existence from its mother' * * *.

Id. at 324-25. Indeed, the state acknowledges that absent other considerations, the application of the common law would mandate the "born alive" rule of interpretation.

The state, however, contends that instead of reliance on the common law of other jurisdictions, this court should confine itself to what the state considers to be the common law of Minnesota. The state argues that this court in Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d...