Jones v. Commonwealth

830 S.W.2d 877, 1992 WL 45626

• Court: Kentucky Supreme Court
• Decided: April 30, 1992
• Docket: 91-SC-270-DG
• Status: Published

Opinions

LEIBSON, Justice.

Movant, Roy Lee Jones, pled guilty to second-degree manslaughter and was sentenced to six years’ imprisonment. His plea was conditional, as provided for in RCr 8.09. He reserved the right to appeal the order denying his motion to dismiss the indictment in which he argued that our manslaughter statute, KRS 507.040, does not encompass death caused by prenatal injuries. KRS 507.040 specifies that manslaughter in the second degree occurs when one “wantonly causes the death of another person.” The issue here is whether the victim fits within the description of “another person,” as used in the statute.

On June 4, 1989, movant, while driving under the influence of alcohol, collided with another vehicle driven by Kimberly Lynch, who was 32 weeks pregnant at the time. Five hours later the baby was delivered by caesarean section, and 14 hours after delivery the baby died from prenatal injuries sustained in the motor vehicle collision.

In the matter-of-right appeal to the Kentucky Court of Appeals, Jones argued for the same result we reached in Hollis v. Commonwealth, Ky., 652 S.W.2d 61 (1983), in which we held that a criminal assault upon a pregnant mother, causing the death of a viable fetus, could not support a murder indictment. The rationale in Hollis was that “destroying the life of a viable fetus was not considered murdering a person at common law and that the statutory definition of murder did not enlarge the scope of the word ‘person.’ ” Id. at 62. Jones also relied on Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936), in which our Court dismissed a murder indictment where the evidence was insufficient to establish “that the child was born alive.”

The Court of Appeals affirmed Jones’ conviction, and he then sought and was granted further review in this Court. The issue before the Court of Appeals, and the issue now before our Court, is whether the facts here call for the same results as in Hollis and Jackson, or whether there is a critical factual difference between this case and those cases that changes the results. Here, as in the Hollis and Jackson cases, the criminal conduct alleged was committed before the fetus was delivered. Here, unlike the Hollis and Jackson cases, the baby was born alive and died subsequently. The Court of Appeals held the present scenario sustains indictment and conviction for criminal homicide. We affirm.

KRS Chapter 507 of the Kentucky Penal Code covers the various offenses constituting “Criminal Homicide.” In each offense the elements of the crime include both certain specified criminal conduct and necessary consequences. Both conduct and consequences are essential to convict of the crime, but they are not interdependent. In this case the conduct must have been wanton and the consequence must have been the death of a person. The mens rea involved in committing involuntary manslaughter covers the mental state of the actor at the time when the criminal act is committed, but the mens rea does not require the actor intend the death of a particular person, or any person; it is only necessary that the consequence of the criminal act, immediate or subsequent, is the death of a person. The quality of the act is measured by the nature of the conduct; whether the victim is a “person” is a separate element of the offense that depends on the victim’s status at the time when death occurs. The statute specifies the act must result “in the death of a person,” but the statute does not specify that the victim must have reached a state of development that fits the legal definition of a “person” at the time the injury is inflicted.

Because the General Assembly had failed to define “person” in the Criminal Homicide statutes, in Hollis we assigned to the word “person” the common law meaning of the term in place when the Penal Code was drafted. We accepted as a working premise that this was the meaning the General Assembly intended because it did not redefine “person” in the criminal homicide statutes. We did not presume to address either metaphysical or medical questions regarding when life begins in Hollis, nor do we do so now. Our task is limited to construing legislative intent by time-honored means; in the absence of a statutory definition, this means we look to common law precedent and to the Model Penal Code drafted by the American Law Institute which was the source of the 1974 Kentucky Penal Code. See Lawson, Criminal Law Revision in Kentucky. Part I — Homicide and Assault, 58 Ky.L.J., 242 (1969-70). In the present case we look once again to these same sources, but they lead us to a different result.

When we look to the legal definition of a “person” as used at common law in criminal homicide cases we find that the fact of birth is what distinguished feticide from infanticide. The Commonwealth has cited us to no less authority than Coke and Blackstone to prove the point. 3 Coke, Institutes, 50 (1648). IV Blackstone’s Commentaries 198 (Sharswood ed. 1860, Vol. II at 464). Blackstone states, in pertinent part:

“Further, the person killed must be ‘a reasonable creature in being...To kill a child in its mother’s womb is now no murder, but a great misprison: but if the child be born alive and dieth by reason of the potion or bruises it received in the womb, it seems, by the better opinion, to be murder....”

Of course, this is the same definition we assigned to the term “person” in the Hollis case. But when we use that definition here the factual difference is critical. In Hollis, the criminal act resulted in the death of a fetus; indeed, even worse, the assault on the mother was intended to destroy the fetus. Nevertheless it was a fetus, albeit a viable fetus, that was killed, and not a “person” as that term was used in stating the elements of murder at common law. In Hollis, we recognized that at common law a viable fetus was not considered a legal person for the purpose of “status as a victim of criminal homicide” until “there was evidence sufficient to establish that the child was born alive.” 652 S.W.2d at 62. Here, the victim was a fetus when the criminal act occurred, but a person when death occurred, so the criminal act resulted in the death of a person. Hollis recognized we were bound by the common law principle enunciated in Jackson, and refused to “expand the class of persons who could be treated as victims of criminal homicide.” Id. at 63. Likewise, we apply, but do not “expand the class of persons,” by this Opinion. The status of the victim as a person at the time when death occurred supplies the final element necessary to the crime of second-degree manslaughter, i.e., the wanton act caused the death of a person (KRS 507.040).

The Court of Appeals’ Opinion included persuasive authority in point from sister states which have reached the same result. In Williams v. State, 316 Md. 677, 561 A.2d 216 (1989), the Maryland court held that criminal infliction upon a pregnant woman of prenatal injuries resulting in the death of her child after live birth sustained a conviction for manslaughter. The court said:

“State courts which have applied the common law in situations similar to that now before us have uniformly applied the Coke-Blaekstone ‘born alive’ rule. They have concluded ... that criminal infliction upon a pregnant woman of prenatal injuries resulting in the death of her child after live birth may constitute manslaughter.” 561 A.2d at 219.

People v. Bolar, 109 Ill.App.3d 384, 64 Ill.Dec. 919, 440 N.E.2d 639 (1982), involves facts markedly similar to the present case. A woman eight- months pregnant was a passenger in a car struck by the defendant’s vehicle when he failed to stop at an intersection. Because of injuries sustained from the accident, doctors were forced to deliver the baby by caesarean section. The baby lived for a few minutes after delivery. The doctors testified that the collision caused the baby’s prenatal injuries which in turn caused death after birth. The defendant’s conviction for reckless homicide was upheld on appeal.

In State v. Hammett, 192 Ga.App. 224, 384 S.E.2d 220 (1989), another vehicular homicide case, the baby was born and lived approximately 11 hours before dying from injuries he had received in the accident. The Georgia court rejected the same argument advanced by the appellant in this case, that some intentional or reckless act subsequent to the child’s birth must exist in order to sustain a conviction for criminal homicide, stating:

it is not the victim’s status at the time the injuries are inflicted that determines the nature of the crime ..., but the victim’s status at the time of death which is the determinative factor.” 384 S.E.2d at 221.

In Hollis v. Commonwealth, supra, after taking note that the Commentary to KRS Chapter 507 “refers repeatedly” to the Model Penal Code, we quote from the Commentary to the Model Penal Code, as follows:

“The effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been born alive. Several modern statutes follow the Model Code in making this limitation explicit. Others are silent on the point, but absent express statement to the contrary, they too may be expected to carry forward the common-law approach.” 652 S.W.2d at 61.

The movant argues that unless a criminal statute provides notice that he might be committing a criminal act toward this victim, it is void for vagueness under constitutional due process principles. These principles only require that the language of a criminal statute be sufficiently precise to provide a fair warning, when measured by common understanding, that certain actions are unlawful, not that the offender must be able to measure the consequences when he commits the act. See Hardin v. Commonwealth, Ky., 573 S.W.2d 657 (1978) and Anderson v. United States, 215 F.2d 84 (6th Cir.1954), cited in the Kentucky Court of Appeals’ Opinion herein.

In driving his vehicle while intoxicated, movant could be found to have acted wantonly in circumstances that caused the death of another person. KRS 501.020(3); KRS 507.040. Protection against constitutionally impermissible vagueness does not require that the accused know the consequences of his act when he ran his car into another one. He need not know there was a woman inside who was pregnant and might deliver a baby which would live for 15 hours before dying as a result of the injuries he inflicted. Involuntary manslaughter does not require a specific intent to kill. The offender need not know who or how many are in the other car in order to be charged and found guilty. He has fair warning against the wantonness of conduct which threatens lives. See generally: W. LaFave & A. Scott, Criminal Law, note 122 at 95 (1972). The “void-for-vagueness” doctrine only “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357,103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

In Hardin v. Commonwealth, supra, we said, “we must take a ‘man on the street’ approach to normal activities. Has the statute defined what can or cannot be done with such clarity that persons upon whom it is designed to operate can understand it?” And in O’Leary v. Commonwealth, Ky., 441 S.W.2d 150, 155 (1969), we held that “a criminal law is not unconstitutional merely because it throws upon people the risk” of anticipating the results of their conduct. The “void-for-vagueness” doctrine does not address the present situation because it is clear what conduct is prohibited.

It is a necessary caveat to this Opinion to specify certain limitations on its rationale. We have addressed only criminal homicide offenses which, while now codified in KRS Chapter 507, were heretofore addressed by the common law. We do not address new offenses, such as criminal child abuse, which were not common law offenses, and for which the common law provides no similar legal precedent. The limit of this case as authority does not extend beyond the definition of a “person” where the term appears, undefined, in the Criminal Homicide statutes.

Murder and manslaughter are criminal acts that result in the death of a “person” (KRS 507.020, .030, .040), and neither the common law nor our statutes requires “person” status at the time the act occurred. Appellant wantonly caused the death of 15-hour old Whitney Leigh Lynch by inflicting prenatal injuries upon her. The common law, Jackson v. Commonwealth, supra, ample precedent found in the decisions from sister states, and the background of the Kentucky Penal Code all illustrate Kentucky’s criminal homicide statutes encompass this sort of victim. The Court of Appeals correctly affirmed appellant’s conviction.

The Court of Appeals’ decision is affirmed.

STEPHENS, C.J., and COMBS, LEIBSON and SPAIN, JJ., concur. LAMBERT, J., concurs by separate opinion in which REYNOLDS and WINTERSHEIMER, JJ., join.

WINTERSHEIMER, J., concurs by separate opinion in which REYNOLDS, J., joins.