Heading: Keller v. Superior Court, 2 Cal. 3d 619, Supreme Court of CA, (1970) p 168.

Facts: Petitioner and Teresa Keeler were divorced on Sept. 2 1968. Keeler did not tell petitioner she was then pregnant by Ernest Vogt, whom she had met earlier that summer. P was given custody of their two daughters, aged 12 and 13 years, and Mrs. Keeler had the right to take the girls on alternate weekends. On Feb 23 1969, Keller was driving on a narrow mountain road after delivering the girls to their home. P was driving in the opposite direction and blocked her way. She stopped, and he got out of the car and walked up to her window, seeming calm. He said if she was pregnant she better stay away. He helped her out of the car, discovered she was pregnant and became extremly upset. He then shoved his knee into her abdomen and struck her in the face with several blows. She fainted and when she awoke he was gone. The suffered extensive bruising of the abdominal wall. A caesarian was performed and the fetus examined in utero. The head was severely fractured and it was delivered stillborn. The baby could have survived from that point in the pregnancy had it been born premature.

Procedure: An information was filed charging petitioner in count I with committing the crime of murder. His motion to set aside the information for lack of probable cause was denied and then sought a writ of prohibition.

Issue: Is an unborn but viable fetus a "human being" within the meaning of the California statute defining murder?

Rule: Statutes must be interpreted as they were intended. If there is to be a broadening, it is up to the Legislature to make it.

Holding: The Legislature did not intend such a meaning and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.

Rationale: The Legislature intended that the definition of murder, apply to a person having been born alive. It was not to extend to feticide as distinguished from abortion. If the court were to apply this rule not only to one having been born alive, but to the fetus, it would act in excess of the judicial power. As Justice Marshall said "It would be dangerous to punish a crime not enumerated in the statute because it is of equal atrocity, or of a kindred character with those which are enumerated."

Policy/Notes: Analogy: a principle of substantive criminal law which permits the conviction of an accused despite the absence of any defined criminal behavior.

Maybe the court ruled this way because they did not want to conflict emerging constitutional views on rights to abortion.