Petitioner received a divorce after marriage of 16 years. He did not know that his wife was pregnant at the time with a child from another man. Petitioner confronted his wife and said that he would “stomp it out” of her. He pushed the woman up against the car and kneed her in the abdomen and hit her in the face, knocking her unconscious. Upon arrival the hospital the baby was delivered via a caesarian section and born stillborn. The doctor stated that the cause of the baby’s death “would have been immediate, and that the injury could have been the result of force applied to the mother’s abdomen.” The mother and her doctor had observed movement of the baby prior to delivery and the doctor testified at that stage the baby would have had a 75% to 96% chance of survival.
“Murder is the unlawful killing of a human being, with malice aforethought.”
Whether an “unborn but viable fetus is a human being within the meaning of the California statute defining murder.”
No. The California legislature did not intend such a meaning to be that of an unborn fetus. At common law, dating back to the 19th century, a baby’s death would not have been considered to be the death of human being unless it had been born alive. The court must assume that the legislature was familiar with common law interpretation and understood at the time that such common law interpretation did not intend the act of feticide as part of the definition of homicide.
There is an important “fair warning” component of due process law, which the defendant is entitled to. “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” This idea is part and parcel of the prohibition against retroactive laws. The court adheres to these principles in holding to the common law definition of homicide, “that a viable fetus in the process of being born is a human being within the meaning of the homicide statutes.” The fetus was not in the process of being born.