Keeler v. Superior Court

Section 187 defines murder as the unlawful killing of a “human being” with malice aforethought. Because the provision originated in California’s 1850 murder statute and was carried forward without material change into the 1872 Penal Code, the Court looked to the Legislature’s original understanding of that common-law language.

At common law, a fetus could not be the victim of homicide unless it was born alive. Coke, Blackstone, Hale, English infanticide cases, and early American authorities all treated the killing of an unborn child—even a quickened child—as something other than murder or manslaughter. A live birth was the threshold for treating the child as a “reasonable creature” or human being for homicide purposes.

The California Legislature knew how to depart from that rule. Before 1850, several states had adopted specific feticide statutes, usually making the killing of a quick unborn child a form of manslaughter. California adopted an abortion prohibition but did not adopt a companion feticide provision. That choice supported the inference that the Legislature did not mean its general murder statute to reach feticide.

The 1872 Code Commissioners’ note expressly stated that a child in the womb was not a “human being” for purposes of murder and had to be born before its killing could constitute felonious homicide. Because this explanation matched the statute’s history and the Legislature adopted the provision unchanged, the Court gave the note substantial weight.

The Court therefore held that section 187 excluded the killing of an unborn fetus. Viability did not alter the statute’s original meaning, although conduct intended to procure a miscarriage could be punishable under the separate abortion statute.

The Court accepted that modern medical science had made viability a medically meaningful concept and that the killing of a viable fetus could be viewed as grave misconduct. But moral gravity and scientific developments could not substitute for a legislative definition of a criminal offense.

Penal Code section 6 reflects California’s rule that crimes and punishments must be created by statute, not by common law or judicial implication. Courts may construe penal statutes according to their fair import, but they may not enlarge them by inserting new meanings or creating “constructive crimes.”

Construing “human being” to include an unborn viable fetus would not merely apply the statute to a new factual setting. It would overturn the settled live-birth limitation embedded in the statutory term’s common-law and legislative history. Whether California should criminalize feticide as murder was therefore a policy choice for the Legislature, not a matter for judicial revision.

Due process requires fair warning of what conduct a penal law makes criminal. Under Bouie v. City of Columbia, an unforeseeable judicial enlargement of a criminal statute cannot be applied retroactively because it operates like an ex post facto law enacted after the conduct occurred.

Before Keeler’s conduct, California law gave no notice that section 187 covered the killing of a fetus that was not in the process of being born. People v. Chavez held that a viable child killed during an ongoing birth process could be a human being for homicide purposes, but it did not hold that viability alone was enough when childbirth had not begun.

Other California authority, sister-state decisions, and criminal-law treatises uniformly adhered to the live-birth requirement. Civil rules recognizing certain rights of unborn children did not change the homicide rule, because those doctrines served different purposes and commonly depended on a later live birth.

Keeler could have understood his conduct to violate the abortion statute, which prohibited using any means with intent to procure a miscarriage, including physical violence. But that possible liability did not provide fair warning that the same conduct constituted murder. The Court accordingly ordered prohibition barring further proceedings on the murder count.