HOMICIDE AND OTHER CRIMES AGAINST THE PERSON

i. Holding: The California Supreme Court held that despite the fetus’ viability, it was not a “human being” as that term was used in the state homicide statute. The court stated that when the legislature passed that statute (in 1850), it did not intend to encompass the crime of feticide within the ambit of homicide. To bring the death of a fetus, even a viable one, within the homicide statute would also, in the court’s view, violate due process, in that there would not have been “fair warning of the act which is made punishable as a crime.”

Note: Most states have agreed with California, that the killing of a fetus (even a viable one) should not be considered to fall within the state’s general murder statute. But a few states have reached the opposite result, concluding that the general murder statute covers the killing of a viable fetus.

c. Changed by statute: Of course, the state legislature is always free to amend the murder statute to explicitly cover the killing of a viable fetus. Alternatively, the state is free to enact a new crime called “murder of a fetus,” and even to punish this crime as seriously as the state punishes the killing of a born-alive person (though it is unclear whether the state may enact the death penalty for this crime of feticide). At least seventeen states have enacted statutes essentially making it a form of murder to kill an unborn. One of these states is California; after Keeler, supra, the California legislature amended its murder statute to include the killing of a fetus (but to exclude, as most such statutes do, an abortion performed with the mother’s consent).

i. Not limited to viable fetus: Of the 17 states just mentioned, 13 create liability only if the fetus was “viable” at the moment it was killed. However, there are apparently no serious constitutional problems with a state’s decision to punish as murder even the killing of a non-viable fetus.

d. Fetus born alive: If the infant is born alive, the defendant can be guilty of common-law murder even though his acts may have taken place before the birth. Thus if, in the Keeler case, the attack by D had taken place when it did, but the baby lived for a few moments outside the womb before dying, D could have been convicted of murder.

2. When life ends: One can obviously not murder a person who is already dead. Therefore, it is important to be able to pinpoint the moment at which death occurs. The problem is particularly likely to occur where a physician performs an organ transplant from a donor which he believes to be a corpse. If a vital organ is taken, and the patient was not dead at the time of the transplant, the physician could be prosecuted for murder.

a. Brain death vs. heart death: The problem is a difficult one because there are conflicting opinions about what physical signs should be sufficient to indicate death. Patients in comas, for instance, frequently continue to have a heart beat (at least while on a respirator) and breathing activity, even though they no longer produce brain waves. Is this “brain death” sufficient? If it is not, the utility of organ transplants may be drastically diminished, since transplants have a significantly greater success rate when they occur prior to or immediately after the cessation of breathing and heart activity.