Read Keelerv.SuperiorCourt, 470 P.2d 617 (1970). In Keeler, the defendant attacked his pregnant ex-wife, and her baby was thereafter stillborn. The California Supreme Court disallowed a murder charge against Keeler under California Penal Code § 187 because the statute criminalized only the malicious killing of a “human being.” The court reached its decision after examining the common-law definition of human being and determining that the definition did not include a fetus. The court reasoned that it could not createa new crime without violating the due process clause, separation of powers, and California Penal Code § 6, which prohibits the creation of common-law crimes. After the Keelerdecision, the California Legislature changed Penal Code § 187 to include a fetus, excepting abortion. 1
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