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Keeler v. Superior Court

Scott Caron

ProfessorScott Caron

CaseCast "What you need to know"

CaseCast –  "What you need to know"

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.

Petitioner Keeler was charged with murder and appeals the denial of his motion to set aside the information on the ground that a fetus is not a “human being”, as contemplated by the California law defining murder.

Synopsis of Rule of Law.

The term “human being”, as contemplated by the penal code of California, does not include an unborn fetus.


Petitioner intercepted his ex-wife, who was in the advanced state of pregnancy, and shoved his knee into her abdomen following his exclamation that he was going to stomp the fetus out of her. As a result, the fetus was delivered stillborn with a fractured skull. Petitioner was charged with murder of the fetus under California’s Penal Code which provides that “murder is the unlawful killing of a human being, with malice aforethought”. Petitioner moved to set aside the charge based on his contention that a fetus is not a human being as contemplated by the murder statute. The motion was denied and the petitioner seeds a writ of prohibition.


Does the fetus which Petitioner is accused of killing constitute a human being within the meaning of the statute?


No. Writ of prohibition granted.
The Supreme Court of California, in holding that the term “human being” does not include an unborn fetus, looked at the legislative history of the enactment of the provision and stated that the legislature intended for human being to mean person who had been born alive and therefore intended to excluded fetus from that definition.

Furthermore, Penal Code section 6 states in essence that there are no common law crimes in California and that the power to define crimes is vested exclusively in the legislative branch. Therefore the People’s argument that given the advances in science, a fetus can be independently viable does not stand. It is up to the legislature and not the courts to change the definition.

The Court continues its rationale for not enlarging the definition of “human being” by stating that even if it did have the power to adopt a new construction of the term, the new construction would not reach the conduct of the petitioner because it could only operate prospectively under the constitutional prohibition against ex post facto laws.

The court discusses the importance, under the principles of due process, of notice of what does and does not constitute criminal behavior. In this case, the court found no reported decisions in California that should have given the petitioner notice that the killing of an unborn but viable fetus was prohibited by statute.


The dissent suggests that the words of a statute must be interpreted by the courts to promote justice and should not be frozen in time.
The majority’s suggestion that an interpretation of the murder statute to include the killing of an unborn fetus would deny the defendant fair warning that his act was criminal is wrong because, based on the existing statute, the defendant had adequate notice that it could constitute murder. Due process precludes prosecution under a preexisting by means of an “unforeseeable judicial enlargement thereof”. The judicial determination of the meaning of “human being” is not an unforeseeable judicial enlargement of the murder statute.


This case addresses several aspects of legality and their limitations with regard to criminal law such as the fact that we do not allow judge-made law, however, laws are written in general terms which necessitates interpretation. The case also addresses the idea that we do not allow the imposition of retroactive lawmaking and that we must afford notice of what acts constitute criminal behavior such that individuals have the opportunity to avoid such behavior.

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