State v. Harbert , 1988 Okla. Crim. App. LEXIS 136 ( 1988 )

OPINION

PARKS, Judge:

The single issue before this Court comes on a reserved question of law. Donald Eugene Harbert, appellee, was charged in Oklahoma County District Court, Case No. CRF-85-5107, with First Degree Murder (21 O.S.1981, § 701.7) (Count I) and Assault and Battery with a Deadly Weapon (21 O.S.1981, § 652) (Count II) arising from the death of Lachelle A. Goldsby and the injury to Tiffiyon Goldsby, an unborn quick child. After the State presented its evidence at a jury trial, the trial judge sustained a demurrer to Count II and ordered that the charge be dismissed, ruling that a fetus cannot be a “person” as required by statute for assault and battery. We uphold the trial court’s ruling.

Lachelle A. Goldsby, was dead on arrival at a Midwest City hospital, the result of a bullet wound. She was within two (2) to four (4) weeks of a full-term pregnancy, and was kept on life support systems until the child was delivered. The child, Tiffi-yon, was a normally developed, viable, near-term baby. She was not struck by the bullet that killed her mother, but was critically injured by deprivation of oxygen, with resulting lung, neurological, kidney and intestinal problems. Had the mother not died, it was predicted that the baby would have had a normal birth.

Whether a fetus can be a “person” to qualify as a victim in the assault and battery statute has never been decided by this Court. The Oklahoma Supreme Court decided over a decade ago that a common-law negligence action could be brought on behalf of a surviving child that was negligently injured before birth. Evans v. Olson, 550 P.2d 924, 927 (Okla.1976), reasoning that “justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.” We find this language persuasive, but feel we have no choice but to uphold the trial court’s ruling for the following reasons.

This Court must operate under the directive that nothing is illegal in this State unless it is made so by statute. Griffin v. State, 357 P.2d 1040, 1046 (Okla.Crim.App.1960). Penal statutes cannot be enlarged by implication or extended by inference. Biggs v. Watt, 56 Okla.Crim.App. 306, 38 P.2d 587 (1935).

The legislature gave us little guidance in this area, stating merely that the word “person” “includes a corporation as well as a natural person.” 22 O.S. 1981, § 4. Nor does the title dealing with definitions and general provisions provide any relief, where “person, except when used by way of contrast, includes not only human beings, but bodies politic or corporate.” 25 O.S. 1981, § 16.

There is no mention that the definition of a “person” should include a fetus. Since there is a doubt, the well-established rule in Oklahoma was articulated by Judge Bussey in State v. Humphrey, 620 P.2d 408, 409 (Okla.Crim.App.1980): that penal statutes are to be interpreted “strictly against the State and liberally in favor of the accused, and words not found in the text of a criminal statute will not be read into it for the purpose of extending it or giving it an interpretation in conformity with a supposed policy.”

Second, the language of the statute can hardly be said to comply with the due process requirements that a criminal offense be so clearly defined that an ordinary person could determine in advance what was prohibited. Statutes creating criminal offenses must be sufficiently explicit so persons of common intelligence may understand their provisions without resorting to speculation. Evans v. Trimble, 746 P.2d 680, 684-85, (Okla.Crim.App.1987); Switzer v. City of Tulsa, 598 P.2d 247, 248 (Okla.Crim.App.1979); Turner v. State, 549 P.2d 1346, 1350 (Okla.Crim.App.1976).

Third, we note that the legislature specifically included a fetus in 21 O.S.1981, § 713, where the killing of an unborn quick child constitutes first degree manslaughter. See also 21 O.S.1981, § 714. We conclude that since the legislature made specific reference to the unborn quick child dealing with the death of a fetus, the absence of such language in the assault and battery statute indicates an intention not to include a fetus in that statute’s protection. See Love v. State, 450 So.2d 1191, 1193 (Fla.App.1984).

We are aware that this ruling is inconsistent with the Oklahoma Supreme Court’s holding in Evans v. Olson, 550 P.2d at 927, that a fetus can be a “person,” but point out that there is a fundamental difference: the Supreme Court was interpreting a common-law negligence action. “No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code.” 21 O.S.1981, § 2.

Therefore, the trial court’s ruling is AFFIRMED.

BRETT, P.J., concurs. BUSSEY, J., dissents.