Homicide is defined by the common law as the unjustified and unexcused killing of a human being. Most American jurisdictions in the nineteenth century divided homicide into two major categories, murder or manslaughter, and then subdivided these categories to reflect differences in available punishments. Murder was divided into first degree (for which a defendant could be executed) and second degree (which did not carry the death penalty). Manslaughter was viewed as a less serious killing and was not initially divided into degrees. However, over the years many states divided manslaughter into voluntary (or first degree) and involuntary (or second degree) manslaughter.
The Model Penal Code abolishes the “degrees” of murder, and makes all murders subject to the death penalty. The availability of the death penalty is a major, though unseen, factor in the development of homicide law. It is, indeed, the gorilla in the closet.
The definition of homicide includes the killing of a “human being.” This term was once self-evident, but current medical technology now raises questions about both the beginning and end points of life’s temporal spectrum.
Death comes to fetuses just as it does to full-born persons. Most courts have held that a viable fetus, even if the obvious target of a purposefully homicidal act, is not a “human being” within the meaning of the homicide statute. In Keeler v. Superior Court, 2 Cal. 3d 619 (1970), the defendant purposely kicked his former wife, whom he knew was pregnant, in the abdomen, threatening to “stomp it out of you.” The fetus died. Reluctantly, but on the theory of narrow interpretation of criminal statutes (see Chapter 1), the court held that the fetus was not a “human being.” But see Commonwealth v. Cass, 392 Mass. 700 (1984). A rarer question is whether a fetus, even at the moment of birth, qualifies as a “human being.” Thus, in People v. Chavez, 77 Cal. App. 2d 621, 176 P.2d 92 (1947), D delivered her baby into a toilet bowl where it drowned. D testified that the baby did not cry, and that she did not tie its umbilical cord. The court held that the fetus became a “human being” after the child passed through the birth canal and took a breath; it was irrelevant that the baby may have been dead by the time the process was finished.
These cases, though rare, raise serious questions about the degree to which the criminal law should broaden its net to capture persons who seem as evil and malevolent as persons already captured by the “normal rules.” Against this goal is the general belief that criminal statutes should be construed narrowly, in order to avoid judicial expansion of legislative determinations of the proper scope of the criminal law. Legislatures, reacting to these decisions, have either broadened the definition of “person” to include fetuses or created a separate offense, called feticide, as did California after Keeler. Cal. Penal Code §187.