Mrs. Keeler had an affair with Vogt, became pregnant, and later divorced her husband.
D saw his ex-wife approaching on a mountain road. He blocked the road with his car. D approached her car, told her that he heard she was pregnant, and opened her car door.
When D saw her stomach, he beat her up and specifically smashed her abdomen with his knee. She suffered injuries, and the fetus was killed.
Expert testimony at trial determined that the fetus had reached the state of viability.
Charges were brought against D for murder.
Is an unborn but viable fetus a "human being" within the meaning of the CA statute defining murder?
An unborn but viable fetus is not a "human being" within the meaning of the CA statute defining murder.
In defining murder, the legislature of 1850 intended that term to have the settled common law meaning of a person who had been born alive and did not intend the act of feticide to be an offense under the laws of CA.
To charge someone with the murder of a fetus, there are two insuperable obstacles, one jurisdictional, one constitutional.
The issue of whether to extend liability for murder of a fetus is a determination solely within the province of the legislature.
A ruling that feticide is murder would violate D's right to due process. He should have fair warning that the act he committed was a crime before he did it.
The reluctance to characterize the killing of a fetus as murder is based upon the presumption that the fetus would be born dead. However, there have been great advances in medicine since the 1850 code was written.
If the term "human being" in the homicide statutes is a fluid concept to be defined in accordance with present conditions, then the term should include the fully viable fetus.
The court looked to Coke (mid-17th century) as the accepted common law rule by the year 1850.
After this case, the legislature amended the law to include fetuses in the murder statute (except in abortions).