The defendant assaulted his estranged pregnant wife by striking her in the abdomen while threatening to stomp the baby out of her. The fetus had been viable and capable of independent life, but died before birth as a result of the attack. The defendant was charged with murder under California Penal Code section 187. He sought a writ to prohibit prosecution on the ground that killing a fetus was not murder under the statute as then written.
Did the California murder statute, which defined murder as the unlawful killing of a "human being," include the killing of a viable but unborn fetus?
At the time, Penal Code section 187's reference to a "human being" did not include an unborn fetus. Courts may not expand a criminal statute by judicial construction when doing so would deprive a defendant of fair warning and effectively create a new crime after the fact.
No. The killing of a viable unborn fetus was not murder within the meaning of section 187 as it then existed, so the defendant could not be prosecuted for murder on those facts.
The court relied on the common-law meaning of "human being," which historically required that the victim be born alive. It examined the statutory history and concluded the Legislature had not clearly displaced that meaning in section 187. The court emphasized due process and the prohibition on ex post facto-like judicial enlargement of criminal liability, reasoning that expanding murder to cover fetuses should be left to the Legislature rather than accomplished through retroactive interpretation. Because the statute did not give fair notice that the conduct constituted murder, the charge could not stand.
Justice Burke dissented, arguing that a viable fetus should be treated as a human being within the purpose of the murder statute and that the majority adhered too rigidly to an outdated common-law rule.
Keeler is a leading legality and fair-notice case limiting judicial expansion of criminal statutes. It is important both for its statutory interpretation of homicide law and for its due process principle against unforeseeable judicial enlargement of crimes, later echoed in Bouie v. City of Columbia, 378 U.S. 347 (1964). After Keeler, the California Legislature amended Penal Code section 187 to include the unlawful killing of a fetus, except as otherwise provided by law, superseding the decision prospectively.
Bouie v. City of Columbia, 378 U.S. 347 (1964) |
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