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Keeler v. Superior Court

Citation. 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970)
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Brief Fact Summary.

Defendant Keeler intentionally kicked his ex-wife, Teresa Keeler, in the stomach in an attempt to abort her unborn child which had been fathered by another man. The Defendant was charged with murder and appealed on the issue of whether the killing of an unborn fetus constitutes murder.

Synopsis of Rule of Law.

A person cannot be convicted for murder if the alleged victim is an unborn fetus.


The Defendant and Mrs. Keeler had been married for 16 years. At the time of divorce, unknown to the Defendant, Mrs. Keeler was pregnant by Ernest Vogt. On the date in question, the Defendant stopped Mrs. Keeler while she was driving her car. He stated to her, “I hear you’re pregnant. If you are you had better stay away from here.” When she did not reply, the Defendant opened the door and helped Mrs. Keeler out of the car. The Defendant looked at Mrs. Keeler’s stomach and became upset. He then pushed her against the car, kneed her in the abdomen, and hit her in the face. She fainted, and when she awoke, the Defendant was gone. Mrs. Keeler sought medical attention, and a Caesarian section was performed. The fetus was examined in utero, and its head was found to be severely fractured. The baby was delivered stillborn. The expert testimony concluded with reasonable medical certainty that the fetus had reached viability, and the chance of survival in the event of birth on the date
in question was 75-96%.


Is a fetus a “human being” within the meaning of the California murder statute, which provides that “Murder is the unlawful killing of a human being, with malice aforethought?”


Citing the common law precedent available to the legislature when it enacted the homicide statute in 1850, the Court held that the legislature did not intend that murder include the killing of an unborn fetus. The statute was again enacted in 1872, and nothing happened between 1850 and 1872 to lead the Court to believe that the Legislature intended to include the killing of an unborn fetus in its definition of murder. For the judiciary to enlarge the crime of murder beyond what the Legislature intended would be an unconstitutional usurpation of the legislative powers.

Further, due process requires that the Defendant be made aware that his conduct is criminal. By enlarging the statute to include unborn fetuses, the judiciary would be depriving the Defendant of fair warning. Hence, the Defendant cannot be convicted of the murder of an unborn fetus.


If a defendant kills an unborn, but viable, fetus, the offense is murder. The majority’s reliance on common law principles to define murder is improper since the legislature has defined the offense of murder. Further, the Defendant had proper notice that his actions could constitute homicide. It would be absurd to suggest that he would have consulted legal treatises before acting.


The holding of this case has been superseded by a statute providing that murder includes the killing of a fetus.

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