State v. BrownState v. Brown
Defendant and another killed Harriet St. Andre May 25, 1977. Defendant was indicted
Defendant was also, in a separate indictment, charged with the “murder of a fertilized implanted fetus in the womb of Harriet St. Andre, in accordance with ... 14:2 and 14:30.1.”
After the manslaughter conviction, and after the trial judge overruled a motion to quash the indictment for the killing of the fetus (the motion to quash was based on double jeopardy), defendant pleaded guilty to manslaughter of the fetus and was sentenced, apparently pursuant to a plea bargain. The trial judge had ruled that collateral estoppel precluded another trial for a crime greater than manslaughter, since the two offenses grew out of the same act of the defendant. The trial judge denied an out-of-time appeal; defendant applied here; we granted the writ, and on deciding the appeal from the manslaughter conviction for the killing of St. Andre, ordered an out-of-time appeal, State v. Brown, 370 So.2d 528 (La.1979).
We do not reach the double jeopardy issue because of error discoverable “by a mere inspection of the pleadings and proceedings.”
Homicide in Louisiana, in all its grades, results from “the killing of a human being.”
“(7) `Person’ includes a body of persons, whether incorporated or not.”
As amended in 1976, “person” is defined as follows:
“(7) `Person’ includes a human being from the moment of fertilization and implantation and also includes a body of persons, whether incorporated or not.”
In 1975 we held that the killing of a fetus was not murder. State v. Gyles, 313 So.2d 799 (La.). The defendant there was charged with the murder of an unborn fetus whose death had resulted from a beating of the pregnant woman. This Court held that when the legislature first defined murder in 1942 it intended to adopt the common law concept of that crime, which proscribes the killing of a human being. The court went on to reason that the crime of murder “contemplates only the killing of those human beings who have been born alive and who thus have an existence independent of their mothers at the time of their death. The crime does not punish conduct which causes the death of a fetus not born alive due to an assault on the mother, in the absence of a statute expressly changing the common law definition of [murder].” State v. Gyles, supra, at 800-801. The court held that without express legislative enactment, the murder statute cannot be extended to punish such conduct. The court stated that to hold otherwise would usurp the legislative function of defining what is criminal activity.
There followed the 1976 amendment of
We held in State v. Gyles, supra, citing the uniform authority in all American jurisdictions, that murder statutes punish only the killing of human beings born alive, in the absence of statutes expressly changing the definition of the crime. In the indictment before us, defendant is charged with the “murder of a fertilized implanted fetus.”
The only extraneous materials available to us which relate to the legislative intent in amending the definition of the word “person” do not reveal any intent to broaden the murder statute (except perhaps by implication), but rather an intent to legislate in the problematic field of abortion. Minutes, Senate Committee, Judiciary C, June 29, 1976. The minutes indicate that the purpose of the bill was “to include human beings (as “persons“) from the moment of conception and therefore entitled to every protection of law.” An intent to change the murder statute was not mentioned.
We can only conclude that the indictment here, charging defendant with the murder of a “fertilized implanted fetus in the womb” of its mother does not charge a crime.
For the reasons assigned, the judgment of the trial court is reversed, and the motion to quash the indictment is sustained.
SUMMER, C. J., dissents.
MARCUS and BLANCHE, JJ., dissent and assign reasons.
MARCUS, Justice (dissenting).
I disagree with the conclusion of the majority that the indictment here, charging defendant with the murder of a “fertilized implanted fetus in the womb” of its mother does not charge a crime. Homicide (all grades) is the killing of a “human being.”
I respectfully dissent. In State v. Gyles, 313 So.2d 799 (La.1975), this Court found that when the legislature first defined homicide in 1942, it intended to adopt the common law concept of that crime. For this reason, we found that the legislature in defining the crime of murder contemplated only the killing of a human being who had been born alive. However, this Court recognized the legislature‘s “constitutional power of the State to punish conduct which causes the death of an unborn child in a pregnant woman as long as it exercises that power in accordance with the dictates of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).” The redefinition of “person” in 1976 indicates a clear intent to include within the term “human being“, a “human being from the moment of fertilization and implantation.” This redefinition by the legislature in 1976 was a response to this Court‘s ruling in Gyles, supra, and an effort to offer the unborn child the full protection of the criminal within the limitations of Roe, supra. The majority objects to the implicit amendment of
The redefinition of murder by the legislature to include feticide is within the bounds set by Roe, since that decision was limited to the regulation of the voluntary abortion. In Roe, the U. S. Supreme Court found that although the state did have a legitimate interest in protecting fetal life, this interest was not compelling until viability. Thus, the Court found that a state could not, by adopting one theory of life, override the privacy rights of the mother. The defendant here asserts no countervailing privacy right. While Roe absolutely prohibits state regulation of a mother‘s voluntary abortion during the first trimester, nothing in the decision prohibits the state‘s regulation of other forms of feticide. Roe does not prevent a state from adopting a particular theory as to when life begins, but rather prohibits the state from using this theory to override the rights of the pregnant woman. Roe v. Wade, supra, at 731, 93 S.Ct. 705.
For the reasons above, I would affirm the defendant‘s conviction.