*1 Movant, Roy JONES, Lee Kentucky,

COMMONWEALTH of

Respondent.

No. 91-SC-270-DG.

Supreme Kentucky.

March 1992. Amended April

As 1992.

Rehearing Denied June Hectus, Perry, Mitchell L.

C. Thomas Louisville, Wagoner, Williams for mov- & ant. Gorman, Gen., Atty. L.

Chris F. Michael Frankfort, Harned, Gen., Atty. Asst. respondent.

LEIBSON, Justice. Jones, guilty to

Movant, Roy pled Lee manslaughter sen- and was second-degree His years’ imprisonment. tenced six conditional, provided for in RCr plea was appeal the right 8.09. He reserved order his motion to dismiss denying he that our argued indictment statute, 507.040, does manslaughter by prenatal encompass death caused man- specifies that injuries. KRS 507.040 degree occurs slaughter in the second “wantonly causes the when one is wheth- The issue here person.” another description of er the fits within the victim statute. person,” “another used *2 878 4, 1989, movant, driving dependent. while In this the conduct

On June case must alcohol, consequence under the influence of collided with have and the been wanton by Kimberly Lynch, person. another vehicle driven the of a must have been death The pregnant 32 at time. in committing who was weeks the mens rea involved involun- baby by Five hours later the was delivered tary manslaughter the mental covers state section, and 14 hours caesarean after deliv- at the time of the actor when criminal baby ery prenatal injuries died from committed, act but the rea is mens does sustained the motor vehicle collision. the actor require not intend the death of a particular person, or is any person; only matter-of-right appeal In the to the Ken- necessary consequence that the of the crim- tucky of Appeals, argued Court Jones for act, subsequent, inal immediate or is the the same result we reached Hollis v. death quality of a act is (1983), Ky., 652 S.W.2d 61 conduct; measured the nature of the in which we held that a assault “person” sepa- whether the victim is a is a mother, causing upon pregnant the death depends rate element offense fetus, support not mur- of a viable could the victim’s status the time when death der indictment. The rationale in Hollis specifies occurs. The statute the act must “destroying life was that of a viable person,” result “in the death of a but the murdering per- fetus not was considered specify statute does victim statutory son at common and that the development have reached state of enlarge did not definition murder ” legal “person” fits the definition of scope ‘person.’ Id. at 62. word injury at the time the is inflicted. also Jones relied on Jackson Common- wealth, (1936), Ky. 96 S.W.2d 1014 Assembly Because the General had failed our Court dismissed a murder “person” to Homi- define the Criminal indictment where the evidence was insuffi- statutes, to assigned cide Hollis we the child cient establish “that was born meaning “person” word the common law alive.” place Penal Code term when the accepted working prem- Appeals Court affirmed Jones’ drafted. We as conviction, sought meaning and ise the General he then and was that this was it did not granted Assembly further review in this Court. The intended because rede- Appeals, “person” fine in the criminal homicide stat- issue before the Court of and Court, presume utes. did not to address ei- issue now before our whether We questions re- metaphysical facts here call for the same results as ther medical begins Hollis, Jackson, life nor do garding Hollis and or whether there is a when Our is limited to critical factual difference between this case we do so now. task changes legislative construing those the results. intent time-hon- cases Here, cases, means; statutory ored Hollis and Jackson absence definition, look to alleged this means we conduct committed Here, precedent Penal un- and to the Model Code the fetus was delivered. before cases, baby drafted the American Law Institute like the Hollis and Jackson subsequently. alive died The which was the source was born Lawson, Appeals present Penal Criminal Law held scenario Code. Kentucky. conviction for crim- Part I—Homicide sustains indictment and Revision (1969-70). Assault, Ky.L.J., homicide. inal We affirm. again once present case we look Chapter 507 of the Ken sources, us they lead to a these same of tucky Penal Code covers various different result. constituting fenses “Criminal Homicide.” definition of a look to In each offense the elements of the crime When we in crimi- used at common law specified criminal con include both certain fact that the necessary consequences. Both nal homicide cases find duct and distinguished feticide from consequences are to birth is conduct essential crime, has cited they are The Commonwealth convict of the not inter- infanticide. authority injuries resulting in the us to no less than Coke and woman Coke, prove point. Blackstone her child after live birth sustained Institutes, IV Blackstone’s manslaughter. The court a conviction (Sharswood Commentaries ed. said: *3 464). states, perti- II at Blackstone in Vol. applied courts have the “State which part: nent law in to that common situations similar “Further, be ‘a the killed must uniformly applied before us have now being...To kill reasonable creature the Coke-Blaekstone ‘born alive’ rule. a child its mother’s is now no womb They have concluded ... that criminal murder, great misprison: if the but a but upon pregnant pre- infliction a woman of and dieth child be born alive reason injuries resulting in the natal death it potion the or bruises received may after her child live birth constitute womb, seems, by the to opinion, better manslaughter.” A.2d at 561 219. murder....” be Bolar, 384, People v. Ill.App.3d 64 course, same definition the we this is Of (1982), Ill.Dec. 440 N.E.2d 639 involves Hollis “person” in assigned to the term the present the case. markedly similar to facts here case. But when we use that definition eight- pregnant a A months was woman Hollis, In the factual difference is critical. in a passenger car struck the defen- criminal the act resulted the death stop he failed to at an dant’s vehicle when fetus; worse, indeed, even the assault on injuries intersection. Because of sustained destroy the mother intended to was accident, doctors were forced to from fetus, fetus. it was a Nevertheless albeit baby by deliver the caesarean section. fetus, killed, viable that was and not a baby delivery. for a minutes after lived few stating “person” as that term was used The doctors testified collision the elements of murder at common law. In baby’s injuries caused which Hollis, recognized we that at defen- turn caused death after birth. The a viable fetus was not considered conviction for reckless homicide was dant’s purpose for the of “status as a upheld appeal. victim of criminal homicide” “there until evidence sufficient establish Hammett, State Ga.App. In the child was alive.” at born 652 S.W.2d (1989), another vehicular 384 S.E.2d Here, 62. victim was fetus when case, baby born lived homicide occurred, act but a when from dying 11 hours before approximately occurred, death so the criminal act resulted he had received accident. injuries Hollis the death of a argu- Georgia rejected the same court princi- we were bound the common law appellant by in this ment advanced Jackson, ple refused to enunciated case, or reckless act that some intentional “expand persons the class of could be who exist subsequent to the child’s birth must treated victims criminal homicide.” for criminal in order to sustain a conviction Likewise, Id. apply, at 63. we do not homicide, stating: persons,” by “expand the class of this it is not status at the victim’s Opinion. The status of the victim as injuries deter- are inflicted that time person at the time when death occurred ..., crime mines nature supplies necessary element final the time of death status at victim’s i.e., second-degree manslaughter, crime factor.” determinative per- act caused the wanton S.E.2d (KRS 507.040). son supra, af- In Hollis v. Opinion included Appeals’ The Court of Commentary to taking note ter authority point sister persuasive from repeatedly” to Chapter 507 “refers result. which have reached same states Code, quote from the Penal we State, the Model 316 Md. Williams In Code, Penal Commentary to Model (1989), Maryland held court A.2d upon pregnant follows: that criminal infliction encourage language is to contin- a manner that does arbi-

“The effect of this discriminatory limiting trary and enforcement.” ue the common-lawrule Lawson, 352, 357,103 killing 461 U.S. homicide to the of one who Kolender 1855, 1858, L.Ed.2d 903 modern stat- S.Ct. been born alive. Several making utes follow the Model Code Commonwealth, supra, Hardin v. explicit. are silent this limitation Others said, “we must take a ‘man on street’ express state- point, on the but absent approach to normal Has the activities. may contrary, they too be ment to the statute defined can or cannot be done the common- expected carry forward persons upon clarity with such whom at 61. approach.” 652 S.W.2d designed can understand operate it is *4 argues unless a The movant Commonwealth, O’Leary it?” And in notice that he provides criminal statute (1969), held Ky., S.W.2d might committing a criminal act toward be that “a criminal law is not unconstitutional victim, vagueness under this it is void for upon people the merely because it throws principles. process due constitutional of their anticipating risk” of the results lan principles only require that the These “void-for-vagueness” conduct. The doc- sufficiently guage of a criminal statute be present not address the situation trine does warning, when precise provide a fair prohibit- it is clear what conduct is because understanding, by measured common ed. unlawful, are not that certain actions Opinionto necessary caveat to this It is a the con able to measure offender be limitations on its rationale. specify certain sequences he commits the act. See when only criminal homicide have addressed We Commonwealth, Ky., 573 Hardin which, codified KRS offenses while now (1978) and Anderson v. United S.W.2d by addressed Chapter were heretofore (6th Cir.1954), States, F.2d 84 cited do not address new the common law. We Opinion Appeals’ Court of abuse, offenses, child such as criminal herein. offenses, and which were not common intoxi driving In his vehicle while provides no the common law for which cated, found to have acted movant could be The limit of this legal precedent. similar wantonly in circumstances that caused beyond authority does not extend case as 501.020(3); death of another the term “person” of a where the definition against Protection constitu KRS 507.040. undefined, Homi- in the Criminal appears, vagueness impermissible does not tionally cide statutes. know the conse require that the accused manslaughter are and Murder he ran his car into quences of his act when “person” result in the death acts that He need not know there was another one. 507.020, .030, .040), (KRS and neither pregnant and who was a woman inside requires statutes law nor our live for might baby which would deliver oc- the act “person” status at the time a result of the dying as 15 hours before wantonly caused Appellant curred. Involuntary man he inflicted. injuries Whitney Leigh Lynch 15-hour old intent require specific slaughter does upon her. injuries by inflicting not know The offender need who to kill. law, v. Common- The common Jackson car in order to many are in the other how found wealth, ample precedent supra, guilty. He has fair charged and found be states, sister and from the decisions against the wantonness of conduct warning all Kentucky Penal Code background of the generally: W. which threatens lives. homicide Kentucky’s criminal illustrate Law, Scott, note A. Criminal LaFave & victim. encompass this sort of statutes “void-for-vagueness” 122 at 95 correctly Appeals affirmed The Court penal “requires statute only doctrine appellant’s conviction. with sufficient criminal offense define the is af- Appeals’ decision The Court people can un ordinary definiteness in firmed. and prohibited what conduct derstand C.J., COMBS,

STEPHENS, and that the terms and “hu- SPAIN, JJ., being” concur. man include unborn children. LEIBSON viable LAMBERT, J., separate concurs majority I concur with the result of the opinion in which REYNOLDS grounds opinion on the set forth herein. WINTERSHEIMER, JJ., join. Wintersheimer, JJ., join in Reynolds and WINTERSHEIMER, J., concurs opinion. concurring this REYNOLDS, J., separate opinion in which joins. Justice, WINTERSHEIMER, concurring. Justice,

LAMBERT, concurring. I affirms the concur result which view, my majority In reliance of Appeals decision of the Court of misplaced. court, alive” the “born doctrine is I agree with the circuit do not the distinction this case and person- view between approach limited in Hollis decision hood. Ky., (1983), 652 S.W.2d 61 as artificial and concurring opinion agree I must with the logical without a basis. Judge Appeals rendered Hollis, fetus the Court held that the McDonald Michael because *5 person killing a and that the of was not does opinion right achieves result but case, murder. how- was not In this fetus enough in com- go examining not far ever, has held that wanton Kentucky mon law or law. may if the injury to a fetus be homicide a provides part 507.040 that K.R.S. alive suc- fetus is born and thereafter guilty manslaughter in the person is of The effect of cumbs. this is “wait vehicle, wantonly motor operation of a he see” a crime committed. whether has been the death another causes of underlying criminality an act of 500.080(12) clearly indicates K.R.S. act must be determined of the time the statutes, Kentucky person, under is For in- example, committed. the act of being.” 507.010 means “a human K.R.S. causing tentionally physical injury to an- guilty that a is of provides also person is then a other crime whether the death homicide when he causes criminal (assault only slight injury in the result is being. human of another degree) injury or physical fourth serious is there sufficient definition believe (assault in second a degree). While preclude so as the invo- the Penal Code may specific of the crime determination of the common law. cation (assault await the result of criminal act correctly frames for Jones dies), Counsel murder if a may become the victim ques- says, when he “The issue in the brief any of has determination whether crime in this Ken- presented case is whether tion may occurred not be so deferred. that, requires Code tucky’s Penal view, my this case cannot be harmon- act, criminal the victim time of the Here, Hollis, the ized Hollis. as in with being,’ or whether already be a ‘human against conduct was committed a nonhuman upon a some trauma inflicted case, in each fetus and the act viable fetus, a conviction being, i.e. a can sustain act or not. We then a criminal it was there is argues Jones for homicide.” opportunity take this to overrule should that a fetus is not no supra, Hollis v. is used in the context as the word its restrictive definition of abandon Hollis v. Jones cites criminal statutes. remotely “person,” a not word definition (1983) Commonwealth, Ky., 652 S.W.2d by legislative history, rules of compelled authority. supporting case as his construction, au- statutory persuasive child was born that the deceased jurisdictions. Hol- The fact thority from other her brief Commonwealth, Wintersheimer, J., only way is station alive lis v. far as it As tragic journey existence. dissenting. should that a viable We hold adequate. majority opinion protection goes, enjoys full of the fetus 8S2

However, analysis Kotz, complete F.Supp. (D.C.Cir. of the stat- brest v. 1946). requires proper- The civil law and the law of recognition utes involved ty regard mere,” a child “en ventre sa under as a fact that a human being concep- from the moment of actually being means a human that it tion. makes little difference whether the death occurred or after birth before because 42 Am.Jur.2d states that § Infants killing being offense was the one human biologically speaking, the life of a human long another. Such an offense has been being begins conception at the moment by Kentucky denounced criminal law. general in the and as a mother’s womb rule law, legal personali- construction arguments My perception present- of the ty is imputed to an unborn child for all here, ed both briefs and at oral purposes which would be beneficial to the argument Attorney that the indicates Gen- infant An after its birth. unborn child at clearly holding eral states that the of Hol- parent the time of its of the death has also lis, application. has no ar- supra, Jones been considered a “child” decedent gues that this Court stated in Hollis of an determining beneficiaries award the application of the homicide statute to a wrongful death action or a worker’s necessarily viable fetus would render the compensation case. there vague statute in that be no would Edition, published Prosser’s 4th deciding if “objective legal standard judicial summarizes the criticism various terminating he the life accused knew recovery denials of to the child. Prosser p. a viable fetus.” Hollis at authority long that medical maintained majority here that a fetus is states viable the child is existence stating as that term is used *6 conception from the of and for moment the murder at It elements of common law. many persons recognized by is its existence holding. I attempts justify to the Hollis regards it the law. The criminal law totally disagree respectfully with of separate entity property and the law analysis limited of the law. that common purposes being considers in for all it 9-page opinion A the search of benefit, taking or are to its such as will phrase does not reveal the use of the “hu- Prosser, the descent. W. Handbook of Cf being.” Century man New Webster’s 20th (4th Ed.1971) pp. Law Torts 336. (1977) Dictionary, unabridged, 2nd de- Ed. 1984, noted Prosser and Keaton that viabili- being human the fines “human” as a with ty does the not affect little characteristics of There is Prosser and Kea- existence of the unborn. “person” that the words and “human doubt 55, (5th Ed.) p. ton on 369. Torts § being” synonymous. law are Common Kentucky case law has followed such principles have been existence for centu- developments. This Court 1955 stated However, application ries. of the reason, that, believe, cogent most “The expanding dynamic area. is a child is an holding that a viable unborn “person” consideration of term Our meaning entity general within the any to dictio- here should take us standard because, biologically ‘person’ is word All of the definitions relate to the nary. fact, is, present- speaking, such a child being. in terms of a term human living being.” human ly person, a existing to anything relating

The or word “birth” Couch, Ky., 285 S.W.2d 901 Mitchell v. mentioned, directly either birth is never (1955). Cooper, Ky., 510 see Cox v. Also any of the numerous defini- indirectly, Rizk, (1974); Ky., Rice v. S.W.2d 530 being.” “person” or “human See tions of (1970). S.W.2d 732 Abortion,” Right to an Prof. John “The Supreme only Jersey The Court not New Journal, Law Vol. Gorby, Illinois Southern recognized personhood of unborn 1. 1979 No. child, right pre to life but held that constitutionally protected reli long vailed over has The civil law reject gious mother who had “person.” beliefs of the Bon- child is unborn Raleigh Bingham, ed a transfusion. who noted that the amendment blood Fitkin- applied any Morgan Hospital Paul universal and to human Memorial 537, Globe, Anderson, being. Congressional 42 N.J. A.2d cert. 39th Con- session, (1866). 12 L.Ed.2d 1st gress, den. U.S. S.Ct. (1964). Common law crimes were abolished Kentucky penal popular

As Dr. when the code was enacted observed Seuss Who, story children’s Hears a it and a liberal construction of Horton Kentucky penal The abundantly clear that “A is a law was mandated. no frequently matter how small.” code is based on and refers to penal model code. model The code has English property common law of homicide, purposes indicates that for long recognized the an unborn child as being human means a has who been being. Accordingly, autonomous human ALI, Code, born alive. Model Penal simply proposition mirrors basic say It is to this definition reasonable law, ordinary language, as in affairs was considered the drafters of Ken- “child” word includes conceived tucky adopted. Code but was not Conse- yet English child. In 1795 an unborn conclude the commen- quently, must ordinary meaning interpreted court legislative to tary reflects a intent not con- children in a Will to include a child in the concept being alive as sider born by the womb. “En ventre sa mere who previously apply followed new living, course and order of nature is then Kentucky Penal Code. clearly description comes within chil analysis living dren time of the decease.” An of the common law this Clark, 399, 126 only 2H Bl. Eng.Rep. required legis- Doe 617 situation is because Thereafter, rejected yet “per- other courts lature defined the word the contention that Assembly this was mere fiction son.” General did indicate “Why provisions penal of construction. should of the code not children that should mere, liberally purpose en ventre sa which means in its construed. Their be womb, repudiate principle mother’s be considered existence? the common They privileges penal are entitled all the laws. strict construction Cf persons.” Hollis, pp. Woodford, my other Dissent in 67 and 68. Thelluson *7 227, (1798). Eng.Rep. Ves. 31 117 required If additional definition is This legislature brief review of the common law as it could define and end the applied Century controversy. Legislatures in the in several states 19th shows protect desire law born-alive the unborn and demon- have modified the common continuing enacting strates and almost universal rule statutes which establish penalties concern murder of an about unborn human life. No real for the California, Florida, Illinois, among distinction can be made the various child. unborn among stages developing life, Mississippi of human and Oklahoma are before birth, legislatures or or so acted. post-natal between state have Massachusetts, separation life. from the Carolina and of South recognized concept being completely human arti- have feticide ab of courts commenced, any specific human of statute. Common ficial. Once life sence Cass, 467 protections 392 Mass. N.E.2d the constitutional found wealth (1986); Horne, 282 S.C. Fifth Fourteenth Amendments to State (1984). impose upon state S.E.2d 703 Federal Constitution duty safeguarding Steinberg it. of dissent, the exist- As noted'in the Hollis 1970) Brown, (D.C.Ohio, F.Supp. stage life child at the of in an unborn ence fundamen- interpretation development of of 28 weeks is a Any historically of correct require sophisticated truth that does the Fourteenth Amendment the Consti- tal legislature, as well as interpretation. The statement of its tution should include the have reason- public general, should prime sponsor Representa- the House of acquaintance A. with the civil laws Congressman Ohio tives John able Kentucky. frequent presumption reproduction It is of human mechanism Assembly really comprised General is aware of the gesta- the onset of adopts any law at the time it other law. development. egg tional The mammalian Consequently, it is reasonable to infer that was not until identified cell was Kentucky Legislature intended the con- recognized first as the structural unit of cept personhood to be extended to the organisms egg sperm in 1839 and the criminal law. were as cells in the next two Arey Developmental decades. See L. analysis A of the historical back- further Anatomy: Laboratory A Textbook and ground general of the common law (6th Ed.1954). Embryology Manual regard person and hu- to the This new research at the time convinced being early scientific man indicates that personnel quickening medical that the old understanding relating life on was based in the common law distinction embodied theory of Aristotle who identified life statutory and some codes was unscientific formed fetus. Ar- with the animation of a ,7.3583b. Sauer, Animals, istotle, By Popula- and indefensible. R. History § begin- (1974). from Century, the middle of the 17th tion We can learn Studies ning equated Century of an actual human life was mid-19th reasonable “quickening” when the with movement analysis of the laws indicated that the safe- mother first felt the unborn child move ty major of the unborn child was a concern Consequently, English her womb. many scholars. Al- medical penalties common law established though early state laws con- a number of an child after death unborn quickening a distinction based on tained quickening. recognized by Lord Coke was life, early gave a lower value to fetal Blaekstone in 1769 in his famous commen- large majority never of state laws England effect taries on the laws on and most of these made this distinction begins contemplation of the law that life “being referred to a woman as with laws an infant is able to stir as soon as phrase which attrib- child” or some similar Blaekstone, mother’s Commenta- womb. child. uted a human status to the unborn (1769). England, ries on the Laws of Origins Moore The and Evolution See J. Policy Medical science has made some advances National Century since the 17th and we now realize I in the result Consequently, concur long the child moves before the moth- affirming achieved quickening. theory feels The movement er Appeals and the circuit court. development or objective is relevant to the give a concurring opinion to submit this depends gestation of the child because complete analysis and review of more impressions by the primarily subjective being in our concept of and human Understandably our ancestors mother. *8 society in the law. judge by information avail- had to the best they pro- and so to them at the time able concurring REYNOLDS, J., joins in this life under the criminal law tected unborn opinion. period quickening forward from the comparatively their coincided with understanding of scientific

primitive, time when individual

they believed was the actually began.

life the 19th only in the second half of

It was biological research advanced

Century understanding the actual

to the extent