Keeler v. Superior Court

NAME:	Keeler (“P”) v. Superior Court (“R”)	470 P.2d 617	1970
FACTS:	· Mrs. Keeler, wife of the P who became pregnant by Ernest Vogt, a man she had been seeing for some time was driving home when P had stopped her on the side of the road. · P said, “I hear you’re pregnant. If you are you had better stay away from the girls and from here. · After helping her out of her car and noticing she was in fact pregnant, he became extremely upset and said “I’m going to stomp it out of you.” He then proceeded to knee her abdomen, and strike her in the face with several blows. · Upon arriving at the hospital, the baby’s head was found to be severely fractured, and it was delivered stillborn. The injury could have been the result of force applied to the mother’s abdomen. · It was concluded by a medical expert that, “with reasonable medical certainty the fetus had developed to the state of viability.”
PROCEDURE:	P was charged with, among other things, murder in that he “unlawfully kill[ed] a human being, to with Baby Girl Vogt, with malice aforethought.” His motion to set aside the information for lack of probable cause was denied, and he now seeks a writ of prohibition (prevent a lower court from exceeding its jurisdiction).
ISSUE:	Is an unborn but viable fetus a “human being” within the meaning of the California statute defining murder?
HOLDING:	NO. The Legislature did not intend such a meaning, and that for the court to construe the statute to the contrary and apply it to the P would exceed our judicial power and deny P due process of law.
REASONING:	· (RULE): Pen. Code 6 – “No act or omission” accomplished after the code has taken effect “is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance,…” · (RULE): Connally v. General Constr. Co. – “…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…” · (RULE): U.S. Const., art. I, §§ 9, 10 – This requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto (after the fact) laws. · (RULE): Bouie v. City of Columbia – “…the same effect occurs when such an act is made punishable under a preexisting statute but by means of an unforeseeable judicial enlargement thereof.” · (RULE): “Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law (one that makes an action done before the passing of the law, and which is innocent when done, criminal; and punishes such action), such as the Constitution forbids. · The court found no reported decision of the California courts which should have given P notice that the killing of an unborn but viable fetus was prohibited by section 187. · A viable fetus “in the process of being born” is a human being within the meaning of the homicide statutes; and it does not hold that a fetus, however viable, which is not “in the process of being born” is a “human being” in the law of homicide.
DISPOSITION:	Writ of prohibition granted
DISSENT:	[BURKE]: The legislature has not “defined the crime of murder in California to apply only to the unlawful and malicious killing one who has been born alive,” but simply used the broad term “human being” and directed the courts to construe that term according to its “fair import” with a view to effect the objects of the homicide statutes and promote justice. There is no good reason why a fully viable fetus should not be considered a “human being” under those statutes and to construe them as such would not create any new offense, and would not deny P fair warning or due process.