Keeler

The majority hold that "Baby Girl" Vogt, who, according to medical testimony, had reached the 35th week of development, *Page 640 had a 96 percent chance of survival, and was "definitely" alive and viable at the time of her death, nevertheless was not a "human being" under California's homicide statutes. In my view, in so holding, the majority ignore significant common law precedents, frustrate the express intent of the Legislature, and defy reason, logic and common sense. Penal Code section 187 defines murder as "the unlawful killing of a human being, with malice aforethought." Penal Code section 192 defines manslaughter as "the unlawful killing of a human being, without malice." The majority pursue the meaning of the term "human being" down the ancient hallways of the common law, citing Coke, Blackstone and Hale to the effect that the slaying of a "quickened" (i.e. stirring in the womb) child constituted "a great misprision," but not murder. Although, as discussed below, I strongly disagree with the premise that the words of our penal statutes must be construed as of 1648 or 1765, nevertheless, there is much common law precedent which would support the view that a viable fetus…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 621 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 622 OPINION In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a "human being" within the meaning of the California statute defining murder (Pen. Code, § 187 ). We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law. The evidence received at the preliminary examination may be summarized as follows: Petitioner and Teresa Keeler obtained an interlocutory decree of divorce on September 27, 1968. They had been married for 16 years. Unknown to petitioner, Mrs. Keeler was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She subsequently began living with Vogt in Stockton, but concealed the fact from petitioner. Petitioner was given custody of their two daughters,…

In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a “human being” within the meaning of the California statute defining murder (Pen. Code, § 187). We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.

The evidence received at the preliminary examination may be summarized as follows: Petitioner and Teresa Keeler obtained an interlocutory decree of divorce on September 27, 1968. They had been married for 16 years. Unknown to petitioner, Mrs. Keeler was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She subsequently began living with Vogt in Stockton, but concealed the fact from petitioner. Petitioner was given custody of their two daughters, aged 12 and 13 years, and under the decree Mrs. Keeler had the right to take the girls on alternate weekends.

On February 23, 1969, Mrs. Keeler was driving on a narrow mountain road in Amador County after delivering the girls to their home. She met petitioner driving in the opposite…