*1 rel. Jeff ATKINSON STATE ex WILSON, Judge, et E. al.
Hon. Ronald 16319.
No. Appeals Court Virginia.
West
Dec. Opinions July
Dissenting Britt, &
Terrance L. Fitzsimmons Par- sons, Wheeling, appellant. Woodroe, Gen., Atty. S. Clark Asst. Charleston, appellee.
American Civil Liberties Union Founda- tion, Freedom, Reproductive Project, New City, Union, York Va. Civil Liberties West Charleston, amicus curiae.
MILLER, Justice: relator, Atkinson, pro- Jeff seeks his murder trial Court of hibit Circuit County on ground Hancock try him. jurisdiction court without request prohibi- support of his for a writ tion, argues he neither statute, W.Va.Code, 61-2-1, nor attend- principles provide criminal ant common law *2 353 sanctions for the murder of an unborn opinion doctor to render a reliable on the child. viability of an unborn child. The circuit placed emphasis considerable on September 23,1981, Gooch, On Lynn Teri Butcher, 431, v. Baldwin 184 approximately thirty-seven who weeks S.E.2d 428 we recognized where pregnant, was robbed killed in her wrongful that a tort action for death could examiner, According home. to medical brought be on behalf of a viable unborn child, Gooch, her unborn Mark Alan died child.1 within minutes of her death. relator already degree been convicted of first legal Because this is a issue of first killing Lynn murder for Teri impression State, Gooch. granted underlying prosecution in this is for petition case prohibition for writ of and issued death of her unborn child. a rule to show cause.2 We conclude that jurisdiction. the circuit court was without
The circuit court concluded that it had
jurisdiction
try
the relator. After ac-
All
parties
of the
in this proceeding
knowledging
person
that at common
agree
law,
law a
the killing
aof
prosecuted
could
for the
murder
viable unborn child was not murder.3 Fur-
child,
an unborn
thermore,
the court
parties
agree
reasoned
also
that our
this common
statute, W.Va.Code,
law rule should be
61-2-1,4
modified
murder
is not
light of
specific
medical advances that
point
enable
on this
rely
and that we must
single Syllabus
420,
(1970) (In
1. The
Bank),
Point in
states:
Baldwin
A.L.R.3d
424-26
cited a
English
supporting
number of
cases
6,
born-
provisions
"Under the
of Sections
5
rule, among
alive
7,
55, Code,
which were Rex v.
1931,
amended,
Brain
Chapter
Article
as
(1834)
349,
1272,
Eng.Rep.
6 Carr. & P.
172
State,
Rex
wrongful
statute
death
an
(1836)
850,
v. Sellis
7
Eng.Rep.
Carr. & P.
173
may
by
action
personal
be maintained
370,
Crutchley
Rex v.
7
representative
Carr. & P.
of a viable unborn child
814,
355,
Eng.Rep.
Atkinson,
173
and referred
inju-
death
such
child caused
Live-birth,
Life,
L.Q.
Birth and
20
Rev.
ries
134
sustained
it while in the womb of its
English
for additional
resulting
authorities.
negligence
mother
from
of the
and,
The vast
of American courts have
upon
proof,
defendant
sufficient
held,
in accordance
damages
with the common
may
be recoverable under the
legislation
contrary,
in the
absence
statute
be awarded in such action.”
anof
unborn child cannot be the basis
prohibition
Our
traditional test for
is stated in
State,
charge
for a
of murder. Clarke v.
117
411,
Egnor,
State ex rel.
v.
Arnold
166
1,
(1898);
Superior
Ala.
on common
Sims,
legislative
placed
on
to be a
probation
5 of State
Point
Syllabus
(1978), that our
inextricably
prerogative.
Probation
not define the sub-
does
setting
punishment,
murder statute
tied to the
*3
“W.Va.Code,
murder:
(Citations
elements of
stantive
legislature’s domain.”
is the
primarily
de-
61-2-1,
designed
was not
omitted).
partic-
elements
fine the substantive
even
Virginia Supreme
Court has been
murder,
degree
but rath-
types
first
ular
of
stating
Taylor
in
v.
explicit by
more
Com-
categorize the common
enacted to
er was
monwealth,
214, 220, 46 S.E.2d
187 Va.
of
purpose
of murder
law crimes
384,
Assembly
(1948):
387
“The General
Similarly,
punishment.”
of
setting degrees
against
power to
crimes
alone has
define
523,
517,
161 W.Va.
Starkey,
in State v.
power cannot be
this Commonwealth. This
(1978),
219,
pointed out
we
244
223
S.E.2d
individuals,
courts,
or
delegated to the
or to
is
our murder statute
“It is clear that
that:
Scott,
In W. LaFave A.
corporations.”
&
all
ele-
designed to
the essential
not
cover
57-69, the
or
supra, at
issue
whether
ments murder.”5
law
create new common
not courts can
.
we have the
issue is whether
The critical
length.
The authors
crimes is discussed
law rule that
authority to alter the common
view that there
indicate that the modern
is
a
be the victim of
an unborn child cannot
authority
position6
for such a
is diminished
v.
W.Va.
Spencer Whyte,
murder.
and conclude:
772, 775,
we
S.E.2d
only
judges
“It was
natural
that
probation
our
stat-
were asked to construe
general princi-
crimes from
should create
could
imprisonment
a term of
ute so that
ples
England,
in medieval
because such
probation
given
part
as a
when
be
legislature
only infre-
as there was sat
statute, W.Va.Code, 62-12-9,
on
was silent
scanty.
quently
legislation was
To-
so, stating:
subject.
do
this
We declined to
States,
day
United
as modern
traditionally recognized that
“We have
legislatures meet
England, the various
right to
primary
has
regularly.
principal original
reason
punishments sub-
define crimes and their
crimes
therefore
common law
has
limita-
ject only to certain constitutional
Scott,
disappeared.” W. LaFave
A.&
Kidd,
Cogar v.
tions.
ex rel.
State
[160
supra, at 68-69.
(1977);
371], 234
S.E.2d 899
State
Morningstar
Mfg.
& Decker
Black
Gates,
ex rel. Heck’s v.
Co.,
162 W.Va.
on which is in of believe there are the area Courts, tort law. in their policy why appro common law fundamental reasons it is capacity, traditionally have played major priate for this Court to defer the creation evolving principles role in case-by- tort on a First, the legislature. new crimes to case recognized basis. We this fact having primary right besides the to create Bradley Co., v. Appalachian Power crimes, legislature composed new the is 332, 350, (1979), W.Va. 256 S.E.2d persons proportionately elected at more where we reexamined and altered our rule frequent intervals than are the members of contributory negligence, stating: “The Obviously, legislature Court. the is law, issue falls within the field of tort closely more representative attuned to and historically which has not been a settled public Second, will than this Court. property area the law such as or con- in the creation and definition of a new tracts, subject but has been to continual crime, legislature the is to make more able change by legislatures the courts and as degrees discreet distinctions to the meet evolving increasingly the needs an graduate penalties offenses mobile, technological industrialized and so- severity to match of the offenses (Footnote omitted). ciety.” See also whereas this Court would be limited Inc., Freight, v. Anchor Motor Sitzes only apply facts before it and could 698, 710-711, 289 S.E.2d newly prospectively. crime created See Son, Joseph Ryerson Hill v. T. & Commonwealth, v. Bouie U.S. Inc., 22, 30-31, 268 S.E.2d 12 L.Ed.2d S.Ct. Prosser, W. Law of Torts 19-21 (4th 1971); Green, ed. The Thrust Tort legisla- An excellent illustration of the (Part I) Law: Environ- Influence of exercising authority ture its criminal law ment, II) (Part Making, Judicial Law statute, W.Va.Code, our sexual offense 61- (Part III) Environment, Scientific through -12, supplanted 8B-1 (1961-62). W.Va.L.Rev. Code, 61-2-15, rape our former statute. rape statute from the evolved common Thus, there exists distinction be hardly any graduation provided law and power tween a to evolve common court’s consequence, rape the offense. As a con- law in which it has tradi areas functioned, i.e., victions were difficult to obtain. tionally See the tort Reed, 558, 563, legislature those areas in 276 S.E.2d State, Syllabus Morning- We tution in force also stated in Point of shall continue same, VIII, Virgi- respects except within the "Article Section of the West in those star: 2-1-1, W.Va.Code, general wherein was altered assem- nia Constitution and were bly day operate bar before not intended as a to this Court’s the twentieth June, eighteen including sixty-three, principles, hundred evolution of common law or has been, be, power legislature or shall historic to alter or amend altered this State.” mon law.” case, the (1981).10 Since the submission 317-18 to two respondents direct our attention altered common have on occasion We created, through their have courts that field, in these but rules in the criminal they powers, crime which common law procedural of a was cases the alteration Horne, “feticide.” In State refer to as a new class not create nature and did (1984), 319 S.E.2d 282 S.C. example, category of crime. For court, any opinion discus in a brief without Petry, power to sion of its create and abet- aiders we concluded that crimes, of a via held fact could accessories before the tors and henceforth be a child would ble unborn degree. first principals in the be indicted crime.12 on reasoning was Part of our based Cass, 392 Mass. Commonwealth any had abolished fact that opin 4-3 467 N.E.2d categories by these distinction between ion, its vehicular homi the court held that mandating punishment sufficiently per broad to cide statute categories. W.Va. same for each of the of a prosecution mit for the death viable Code, Burton, 61-11-6. made child. Both and Cass Horne *5 (1979), 40, 129 we con- 254 S.E.2d citing rulings prospective, Bouie their not Commonwealth, in a criminal case is of supra, cluded that venue so that neither prosecuted of- under of the substantive criminal the defendants could be an element therefore, newly crimes. dis and, their formulated may proved by a fense pointed the familiar rule sent in Cass to preponderance the evidence. See also strictly must be con that criminal statutes 593-94, Grimmer, 588, State v. majority’s opinion and termed the strued 780, (1979), overruled on inappropriate judi “an ‘exercise of raw as supra. Petry, grounds, other State ” 809-810, power.’ cial 392 Mass. N.E.2d at 1330. There is a considerable difference making in this Court alterations between persuaded by the rea are not We rules, procedure practice autho soning and believe that a of Home or Cass constitutionally recognized rized our judicial under restraint forbids proper exercise We, rulemaking power,11 creating new following and a from their course. there us fore, neither our murder stat- conclude that crime. promulgate all Legislatures power to rules for cases a number of states have mod have 10. criminal, proceedings, ified the common law born-alive rule enact for civil and all ing penalties writs, for relating statutes that establish criminal to war- the courts rants, the a child. See the murder of viable unborn practice procedure, process which (West 1970); Fla.Stat. § Cal.Penal Code shall have the force and effect of law.” 38, (1971); Ill.Rev.Stat. ch. 9-1.1 § (1981); § 782.09 Ann. Okla. § Miss.Code 97-3-37 authority create 12. Home cited as its to new 11- § R.I.Gen.Laws § Stat.tit. Brooks, 277 law crimes State v. S.C. common Illinois, (1975). the re 23-5 spective In California Mouzon, and State v. legislative apparently re statutes were Brooks, S.E.2d 672 In 231 S.C. Court, sponses Superior Cal.3d Keeler the determined that as an element of Cal.Rptr. 470 P.2d A.L.R.3d felony” burglary, "the intent to commit would Greer, (In Bank), People expanded to include the intent to commit a Ill.2d 37 III.Dec. 402 N.E.2d Mouzon, no there is indi misdemeanor also. supreme the of those two states courts opinion chang that it up cation in the court's was to create held that it was the judiciary. ing and not the See the common to create a crime. crime feticide Comment, Legislative Ame Feticide Illinois: Rule, 4 Law N.Ill. lioration a Common in a number of We have utilized this rule legislative en Under these U.L.Rev. 91 cases, by Syllabus 2 of as illustrated Point actments, penalty of an un for the murder Ball, (1980): born child often less severe than under " strictly must be construed ‘Penal statutes regular murder statute. against and in favor of the defendant.' the State Wood, pt. Syl. ex rel. Carson v. VIII of the West Section of Article (1970)." provides, part: “The court shall Constitution 61-2-1, ute, W.Va.Code, “person” purposes nor its attendant held to be a for of our however, prosecu- wrongful Today, death act. authorize for common “policy” majority reasons refuses to for tion of an individual grant protec- these same individuals This matter must be viable unborn child. tions due under criminal law. sim- legisla- good judgment of the left to terms, can, ple law, you under our collect ture, authority primary has the but not convict. create crimes. upon between Reliance a distinction reasons, foregoing grant the For the role in evolution tort Court’s law and prohibition.
writ of
basis
criminal law as a
for avoidance of
Writ Awarded.
legal
clearly
such a serious
issue is
unten
presented
able under the circumstances
Justice,
McGRAW,
dissenting:
Contrary
majority’s
this case.
asser
majority’s
determination that
tion, the
decision
not based in
Baldwin
legislature’s
right
primary
so-called
to de-
Rather,
an area
common law tradition.
punishment
fine crimes and their attendant
Baldwin,
right
noted
“no
of action
to alter
warrants
Court’s refusal
by wrongful
for death
act existed at
nothing
archaic “born-alive” rule is
but an
right
or cause of action
duty
abdication of
in the face of controver-
death, maintainable,
if
exists
sy. Their “decision not to decide” estab-
provisions
under and
virtue
”
paradoxical
injustice
lishes a
under the wrongful death statute of this State....
is,
laws
if
State. That
a viable
Accordingly, this
protect-
still
rule while
and caused the
pregnant
pedestrian
alive”
female
archaic “born
right
privacy
ing
fundamental
women’s
fetus.
pedestrian’s
viable
death
by declaring that inten-
in their
bodies
own
held that a viable fetus
The court Cass
mother,
acts,
unconsented
tional
question.
the statute
“person”
is a
under
of a
injury
in the
death
result
holding,
rejected the asser
the court
so
punished under the
fetus
viable
develop
common
that was unable
tion
requi-
where all
criminal laws
legisla
law where the
law rules
criminal
elements,
viability,
prov-
including
are
site
promulgated criminal
stat
ture had
beyond
doubt.
a reasonable
en
rejected the assertion
The court also
utes.
prob
This is
an instance of
recent
not
that,
in the
by using
“person”
the term
legislature has not had ade
lem where
statute,
vehicular homicide
opportunity to act.
quate time or
Various
preexisting,
lim
crystallize
intended
New
legislatures, beginning with the
state
“person”
definition of
at
law.
ited
years
Legislature
ago,
York
over
Finally, the
concluded that the rule of
court
consequences
the harsh
have ameliorated
of criminal statutes did
Westerfield,
strict construction
alive” rule. See
of the “born
construing
Legal
prevent
A
Ana
court from
Alive Doctrine:
Born
chronism, 2 So.Univ.L.Rev.
“person”
include
fetuses.
word
viable
however,
majority,
prefers
to remain
1327. The
392 Mass.
467 N.E.2d at
injustice
quiescent, perpetuating
Cass stated:
problem
even
blind confidence
will
think
rule is that
We
better
tually be addressed.
injuries resulting in
prenatal
infliction of
reasons, I
foregoing
respectfully
For the
fetus,
the death of a viable
before or
dissent.
born,
person
it is
If a
after
homicide.
against
preg-
were to commit violence
Justice, dissenting:
MeHUGH,
destroy
fetus
nant woman and
within
case,
tragic
pregnant
woman
her,
we would not want the death
in her
was robbed and killed
home. She
go unpunished.
fetus to
We believe that
pregnant.
Her unborn child
was weeks
protec-
should extend its
*7
minutes of her death.
In cases
died within
tion to viable fetuses.
nature,
the death of neither the
Mass. at
cases.1
The common law “must be forever on
progress; assigned and no limits can be improvements.”2 I would
hold that Court properly could deter- prosecuted
mine that an individual could be
for the of a viable unborn child. ex
STATE rel. WEST VIRGINIA
MAGISTRATES ASSOCIATION GAINER, etc., Jr., Auditor, B.
Glen Crabtree, Dir.,
Paul Adm. etc.
No. 16511. Appeals Court of Virginia.
West
March Opinion July 10,
Dissenting
*8
Court,
learned,
Compare
Superior
1.
Mari
mon
law never
is almost to utter a
Summerfield
copa County,
declaration,
144 Ariz.