State v. GylesState v. Gyles
The defendant, Arthur Ray Gyles, is charged with the murder of an unnamed male child, a violation of
The defendant is charged with second degree murder under
The express statutory recognition that the definition of the crime of murder (as well as of other crimes) was to be found in the common law of England continued for the next one hundred and thirty-seven years, until for the first time the legislature itself defined the crime by Article 30 of the Criminal Code of 1942, as above cited and as found in the murder statute under which the present prosecution is brought. See Dart‘s Louisiana Code of Criminal Procedure and Criminal Statutes, § 600 (1932); Revised Statutes of 1870, § 976; Act 121 of 1855, § 73; Acts Passed at the Second Session of the Legislative Council of the Territory of Orleans, Chap. IV, § 3 at 36-38 (1805). See also State v. Robinson, 143 La. 543, 78 So. 933 (1918); State v. Mullen, 14 La.Ann. 570 (1859).
The 1942 codification retained the common law concept of the crime of murder, as defined by the common law and jurisprudence since 1905. Act 43 of 1942, Article 30, Official Revision Comment and decisions cited therein; Bennett, The Louisiana Criminal Code: A Comparison with Prior Louisiana Criminal Law, 5 La.L.Rev. 6, 22-24 (1942). The common law defined the crime of murder as the felonious “killing of a human being.” See 40 C.J.S. Homicide § 1, p. 823, 40 Am.Jur.2d 300, Homicide, § 8, and the other treatises and decisions cited Infra. That definition was thus retained in the 1942 codification, which is the verbatim source of the present murder statute as quoted supra.
The common law crime of murder, which proscribes the killing of a “human being,” contemplates only the killing of those human beings who have been born alive and who thus have an existence independent
Thus, under the uniform American and common law jurisprudence, the defendant‘s conduct of striking the pregnant woman and causing the stillbirth of the child is not punishable as a “murder” under the definition of that crime in the Louisiana statutes and those of other jurisdictions. As earlier noted, however, the alleged conduct is punishable as a felony in Louisiana under another criminal statute. See Footnote 1, supra. The authorities also note that by express statutory enactment in several states the conduct is punishable as a degree of murder or as a specific crime of feticide, where the death of an unborn but viable child (the fetus) results from injuries inflicted upon a pregnant woman under such circumstances that the assailant would be guilty of murder had the mother died instead of the unborn child.6 Louisiana has no such statute. While these authorities recognize that the unborn child is considered a person in many instances, such as for inheritance or wrongful death recovery in a tort suit, nevertheless, an act against a pregnant woman which prevents the fetus from being born alive is simply not conduct proscribed by the legal definition of the crime of murder, in the absence of express statute so providing.
Despite this uniform authority to the contrary, the State nevertheless suggests that this Court should extend the definition of the murder statute so as to include as punishable by it the criminal conduct alleged in this case. By all historic, traditional, and express concepts of our legal system, this Court cannot do so. In the first place, this Court cannot create a crime; only the legislature may.
“* * * For a court to simply declare, by judicial fiat, that the time has now come to prosecute under section 187 [punishing the crime of `murder‘] one who kills an unborn but viable fetus would indeed be to rewrite the statute under the guise of construing it. Nor does a need to fill an asserted `gap’ in the law between abortion and homicide. . . justify judicial legislation of this nature: to make it `a judicial function “to explore such new fields of crime as they may appear from time to time” is wholly foreign to the American concept of criminal justice’ and `raises very serious questions concerning the principle of separation of powers.’ * * *” Keeler v. Superior Court, 470 P.2d 617, 625-26 (1970).
We reiterate that the narrow question before us is whether the crime of “murder,” as defined by the Louisiana legislature, also proscribes conduct which causes an unborn child to be born dead. In accord with the uniform and undisputed authority, we hold that, until the legislature provides otherwise, the crime of “murder” enacted by our legislature does not proscribe such conduct. Our decision does not at all question the undoubted existence of the unborn child for civil purposes.
For the reasons assigned, the judgment of the district court is reversed, and we sustain the defendant‘s motion to quash the indictment charging him with murder. The prosecution for this crime is dismissed.
Reversed and dismissed.
SUMMERS, J., dissents and will assign reasons.
CALOGERO, J., additionally, assigns concurring reasons.
CALOGERO, Justice (concurring).
I am in full agreement with the majority‘s conclusion that the definition of murder, as it now appears in
But for the foregoing, however, I would not hesitate to interpret the statute as proscribing the killing of an eight and one half month unborn fetus, for I believe that such an unborn child is indeed a human being. By appropriate amendment to the statute, evidencing a legislative intent different from that which I believe to have been the intent in passing the 1942 statute, the legislature may define and proscribe, as the crime of murder, the killing of an unborn, viable fetus.
SUMMERS, Justice (dissenting).
The statute defining second degree murder is clear and unambiguous. It recites that “Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; . . . .”
I am of the opinion that the question must be answered in the affirmative and it cannot be avoided by saying the legislature did not intend that the statute defining second degree murder should apply to the facts of this case. To the contrary, I find it immeasurably more difficult to conclude that the legislature intended that such an offense—involving as it does the killing of a human being precisely as set forth in the statute on second degree murder—should only be punishable in Louisiana as a battery.
None of the authorities cited by the majority are binding on this Court, whereas the unequivocal language of the second degree murder statute is binding on this Court.
As in this case, “When the law is clear and free from ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”
“. . . in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provisions.”
La.R.S. 14:3 .
I find it to be the purpose of this law to prevent the killing of human beings, and I find that a human being has been killed by this defendant contrary to that law.
I would uphold the trial judge‘s ruling denying the motion to quash this indictment.