DocketNumber: No. 3533
Citation Numbers: 263 N.E.2d 253, 23 Ohio App. 2d 259
Judges: VAN NOSTRAN, P. J.
Filed Date: 9/17/1970
Status: Precedential
Modified Date: 1/13/2023
This appeal on questions of law is from a judgment of the Court of Common Pleas of Stark County, Ohio, sentencing the defendant-appellant to one to twenty years in the Ohio Penitentiary for violation of R. C.
"No person shall unlawfully and unintentionally cause the death of another while violating Section
The evidence before the trial court was in the form of a stipulation between the parties and included a stipulation that in substance the victim of this homicide was a viable but unborn fetus of a seven-month pregnant woman.
This case is unique because it is the first time an Ohio court has regarded a viable unborn fetus to be the subject of homicide.
In the interest of brevity, we state that the carefully considered opinion of the Common Pleas Court of Stark County, Ohio, is reported as State v. Dickinson (1969),
We reverse the conviction and enter final judgment of acquittal. The reasons we must do so appear to us to be simple and compelling.
The Common Pleas Court based its ruling upon two precedents of the Ohio Supreme Court which, for purposes of civil personal injury cases, defined "persons" to include a viable unborn fetus. Williams v. Transit, Inc. (1949),
We feel bound to distinguish those civil cases from criminal prosecutions for homicide.
Ohio has no common-law crimes. No act is criminal in this state unless it is expressly made so by positive legislative enactment. Smith v. State (1861),
It is well settled that at common law an unborn fetus, viable or otherwise, could not be the subject of homicide. Rex v.Brain, 6 C P, 349, 172 Eng. Report 1272 (1834); Rex v.Enoch, 5 C P, 539, 172 Eng. Report 1089 (1833). See also Clark Marshall, Crimes, 534 et seq., Section 10 (6th Ed., Wingersky Revision, 1958) et seq. Also see Krichman v. United States
(1921),
The language of this statute is not mere street corner conversation. The language was officially selected by one legal agency and addressed to judges as legal technicians in another branch of the same government. Where there is a fixed and clear pre-existing legal meaning for language the courts must give effect to it. *Page 261
As we analyze this case, we find the word "person" to have a clear and fixed meaning within the context of common-law crimes.
In the absence of a contrary legislative definition, we hold, as Ohio courts regularly do, that the law requires that language be given that meaning which in criminal context has been historically clear among lawyers. However, even assuming arguendo this to be a case of ambiguity, we would reach the same result by applying the rule that in case of ambiguity criminal statutes are to be construed in favor of the accused. R. C.
In summary, since we find the word "person" to have had at the time of its use by the Legislature a clear cut common law meaning, and since the Legislature did not otherwise define the word, we feel the more appropriate rule is as set forth in the opinion of the case of In re Torok,
"As this court has repeated in numerous cases involving statutory construction, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact. Slingluff v. Weaver,
Until the Legislature of this state amends the homicide statutes so as to expressly include as the object of their protection a viable unborn fetus, we feel compelled to hold that an unborn fetus, viable or otherwise, has not been made the subject of homicide under R. C.
See also to the same effect the recent Supreme Court of California case of Keeler v. Superior Court of Amador County decided June 12, 1970.
For the reasons set out, the judgment of conviction of the Common Pleas Court is reversed and a final judgment of acquittal entered.
Judgment reversed.
RUTHERFORD, J., concurs. *Page 262