OPINION
NEAL, Judge.
This appeal has been brought by the State challenging the trial court’s dismissal of Count II of the grand jury indictment against the defendant, Richard Lamar Willis, charging him with vehicular homicide.
The only issue in this case is whether an unborn viable fetus is a human being for purposes of the New Mexico Vehicular homicide statute, § 66-8-101, N.M.S.A. 1978 (1982 Cum.Supp.).
As Judge Wood states in his specially concurring opinion: the killing of a human being for which § 66-8-101, supra, provides a punishment is “homicide” by vehicle. The killing of a fetus, under the common law, was not homicide unless the fetus had been born alive; until born alive there was no human being. Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); Means, The Phoenix of Abortional Freedom: Etc., 17 N.Y.L.F. 335 (1971).
The question involved has been discussed in several well-documented law review articles: Criminal Law — Homicide—Fetus, 23 Vanderbilt Law Rev. at 854; Feticide in California — A Proposed Statutory Scheme, 12 Univ.Cal. Davis at 723; Feticide — The Unborn Child as a Human Being, 45 Tulane Law Review at 408; Born Alive, 1963 Crim. Law.Rev. at 748.
As stated in the Vanderbilt Law Rev. article at page 855 and 856:
The early common law did not attach human status to a fetus for the purposes of protection under the homicide statutes until quickening had occurred. Quickening, or animation, usually occurs between the sixteenth and twentieth week of pregnancy. By the mid-nineteenth century, however, the common law had shifted to the “born alive” theory. This theory stated that the unborn child is not a human being and hence cannot be the victim of homicide unless it is subsequently born alive. Early cases under the rule required a complete live birth as evidenced by an independent circulation. The rule was rather ambiguous, however, since there was no recognized standard of what constituted a live birth or an independent circulation. Despite these difficulties the supposed medical criterion of an independent circulation was the favorite view in England from 1780 until the passage of the Infanticide Acts of 1922 and 1938. No authoritative view of infanticide had been adopted by the courts in the United States by the end of the nineteenth century. By the middle of the twentieth century, however, the now prevailing view requiring live birth had been established. Basically, this majority American view is an elaborate version of the old common law rule, and a flood of cases have appeared trying to determine the exact moment when live birth actually occurs. * * *
It is interesting to note and the State concedes that all jurisdictions having considered this issue have held that the homicide statutes of their respective states do not apply to a viable fetus. In its sole argument the State urges that this Court should hold that the New Mexico Legislature did intend a viable fetus to be included within the definition of human being as found in the Vehicular Homicide Statute because of its existence in the New Mexico abortion statute; that the abortion statute demonstrates the Legislature’s compelling interest to protect the life of a fetus.
There is no doubt that this State and every other state has an interest in protecting the life of an unborn child. The error that the State makes is in leaping to the conclusion that this interest makes feticide the statutory equivalent to homicide. Only the Legislature can decide to equate the two, and until they decide to do so there is no basis upon which to impose homicide sanctions for the destruction of a fetus. The Judiciary, without legislative authority, cannot expand the scope of the homicide statute to include feticide. This is true because (1) only the Legislature can substantially enlarge the scope of penal statutes, United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 5 L.Ed. 37 (1820) and (2) such an expansion would violate defendant’s right to be free of ex post facto enactments, since inclusion of viable fetus in the definition of human being would make defendant liable for a crime not proscribed when it occurred. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); State v. Norush, 97 N.M. 660, 642 P.2d 119, 21 N.M.S.B.B. 17 at 533, 534 (Ct.App.1982).
The power to define crimes and to establish criminal penalties is a legislative function. State v. Pendley, 92 N.M. 658, 593 P.2d 755 (Ct.App.1979).
This is basically a question of statutory construction. In State v. Garcia, 83 N.M. 490, 493 P.2d 975 (Ct.App.1971), the court provided the following guidance:
* * * The cardinal rule in the construction of a statute is to ascertain the intention of the Legislature as it is expressed in the words of the statute, and for this purpose the whole act must be considered. The law requires that penal statutes shall be strictly construed, by which is meant that courts will not extend punishment to cases not plainly within the language used. * * *
Any ambiguity in a criminal statute is construed against the state. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). If this standard is used, does the definition of “human being” include viable fetus? We hold that it does not.
In 1853-54, Art. 28, ch. II, § 10, the Legislature first enacted homicide statutes in which the killing of a human being and the killing of an unborn infant child were separately addressed. Laws 1853-54, supra. Therefore it seems that the Legislature made a distinction between killing a human being and killing what we would consider a viable fetus today. The term “human being” has remained in the definition of murder and is found throughout the homicide statutes. Sections 30-2-1 through 30-2-9, N.M.S.A.1978 (1982 Cum.Supp.). The killing of an unborn infant child in New Mexico remained a crime until 1963 when it was repealed. Having differentiated between human beings and viable fetuses until 1963, it does not follow that the Legislature meant to include viable fetus within the definition of human being without specifically making provision therefor.
We must presume that the legislature was informed as to the existing law. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). The Legislature had treated human beings and unborn infant children differently for over one hundred years. The repeal of the law making it a third degree felony to kill an unborn child seems to indicate that the Legislature no longer wanted this to be a crime and that the only crime against viable fetuses was to be found in the abortion statutes.
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OPINION
NEAL, Judge.
This appeal has been brought by the State challenging the trial court’s dismissal of Count II of the grand jury indictment against the defendant, Richard Lamar Willis, charging him with vehicular homicide.
The only issue in this case is whether an unborn viable fetus is a human being for purposes of the New Mexico Vehicular homicide statute, § 66-8-101, N.M.S.A. 1978 (1982 Cum.Supp.).
As Judge Wood states in his specially concurring opinion: the killing of a human being for which § 66-8-101, supra, provides a punishment is “homicide” by vehicle. The killing of a fetus, under the common law, was not homicide unless the fetus had been born alive; until born alive there was no human being. Keeler v. Superior Court of Amador County, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); Means, The Phoenix of Abortional Freedom: Etc., 17 N.Y.L.F. 335 (1971).
The question involved has been discussed in several well-documented law review articles: Criminal Law — Homicide—Fetus, 23 Vanderbilt Law Rev. at 854; Feticide in California — A Proposed Statutory Scheme, 12 Univ.Cal. Davis at 723; Feticide — The Unborn Child as a Human Being, 45 Tulane Law Review at 408; Born Alive, 1963 Crim. Law.Rev. at 748.
As stated in the Vanderbilt Law Rev. article at page 855 and 856:
The early common law did not attach human status to a fetus for the purposes of protection under the homicide statutes until quickening had occurred. Quickening, or animation, usually occurs between the sixteenth and twentieth week of pregnancy. By the mid-nineteenth century, however, the common law had shifted to the “born alive” theory. This theory stated that the unborn child is not a human being and hence cannot be the victim of homicide unless it is subsequently born alive. Early cases under the rule required a complete live birth as evidenced by an independent circulation. The rule was rather ambiguous, however, since there was no recognized standard of what constituted a live birth or an independent circulation. Despite these difficulties the supposed medical criterion of an independent circulation was the favorite view in England from 1780 until the passage of the Infanticide Acts of 1922 and 1938. No authoritative view of infanticide had been adopted by the courts in the United States by the end of the nineteenth century. By the middle of the twentieth century, however, the now prevailing view requiring live birth had been established. Basically, this majority American view is an elaborate version of the old common law rule, and a flood of cases have appeared trying to determine the exact moment when live birth actually occurs. * * *
It is interesting to note and the State concedes that all jurisdictions having considered this issue have held that the homicide statutes of their respective states do not apply to a viable fetus. In its sole argument the State urges that this Court should hold that the New Mexico Legislature did intend a viable fetus to be included within the definition of human being as found in the Vehicular Homicide Statute because of its existence in the New Mexico abortion statute; that the abortion statute demonstrates the Legislature’s compelling interest to protect the life of a fetus.
There is no doubt that this State and every other state has an interest in protecting the life of an unborn child. The error that the State makes is in leaping to the conclusion that this interest makes feticide the statutory equivalent to homicide. Only the Legislature can decide to equate the two, and until they decide to do so there is no basis upon which to impose homicide sanctions for the destruction of a fetus. The Judiciary, without legislative authority, cannot expand the scope of the homicide statute to include feticide. This is true because (1) only the Legislature can substantially enlarge the scope of penal statutes, United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 5 L.Ed. 37 (1820) and (2) such an expansion would violate defendant’s right to be free of ex post facto enactments, since inclusion of viable fetus in the definition of human being would make defendant liable for a crime not proscribed when it occurred. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); State v. Norush, 97 N.M. 660, 642 P.2d 119, 21 N.M.S.B.B. 17 at 533, 534 (Ct.App.1982).
The power to define crimes and to establish criminal penalties is a legislative function. State v. Pendley, 92 N.M. 658, 593 P.2d 755 (Ct.App.1979).
This is basically a question of statutory construction. In State v. Garcia, 83 N.M. 490, 493 P.2d 975 (Ct.App.1971), the court provided the following guidance:
* * * The cardinal rule in the construction of a statute is to ascertain the intention of the Legislature as it is expressed in the words of the statute, and for this purpose the whole act must be considered. The law requires that penal statutes shall be strictly construed, by which is meant that courts will not extend punishment to cases not plainly within the language used. * * *
Any ambiguity in a criminal statute is construed against the state. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). If this standard is used, does the definition of “human being” include viable fetus? We hold that it does not.
In 1853-54, Art. 28, ch. II, § 10, the Legislature first enacted homicide statutes in which the killing of a human being and the killing of an unborn infant child were separately addressed. Laws 1853-54, supra. Therefore it seems that the Legislature made a distinction between killing a human being and killing what we would consider a viable fetus today. The term “human being” has remained in the definition of murder and is found throughout the homicide statutes. Sections 30-2-1 through 30-2-9, N.M.S.A.1978 (1982 Cum.Supp.). The killing of an unborn infant child in New Mexico remained a crime until 1963 when it was repealed. Having differentiated between human beings and viable fetuses until 1963, it does not follow that the Legislature meant to include viable fetus within the definition of human being without specifically making provision therefor.
We must presume that the legislature was informed as to the existing law. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). The Legislature had treated human beings and unborn infant children differently for over one hundred years. The repeal of the law making it a third degree felony to kill an unborn child seems to indicate that the Legislature no longer wanted this to be a crime and that the only crime against viable fetuses was to be found in the abortion statutes.
Moreover, we have reviewed case law from other jurisdictions and the cases are universally in accord with our position. Seven appellate courts since 1970 have addressed this issue. Three states have considered the matter in light of general homicide statutes. In each, the courts have held that the term “human being” did not include an unborn fetus. People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); State v. Brown, 378 S.2d 916 (La.1979); Keeler v. Superior Court, 87 Cal. Rptr. 481, 2 Cal.3d 619, 470 P.2d 617 (1970). The other four states answering the issue presented in this case, is a viable fetus a human being within the meaning of a vehicular homicide statute, held that the term “human being” or “person” did not include a viable fetus. State In the Interest of A.W.S., 182 N.J.Super. 278, 440 A.2d 1144 (1981); People v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775 (1980); State v. Larsen, 578 P.2d 1280 (Utah 1978); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599 (1971).
The decision of the trial court is affirmed.
IT IS SO ORDERED.