Keeler v. Superior Court Of Amador County

470 P.2d 617 (Ca. 1970).


D and Teresa Keeler obtained an interlocutory decree of divorce. At that time, Teresa was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She began living with Vogt in Stockton, but concealed the fact from D. D was given custody of their two daughters, aged 12 and 13 years, and under the decree, Mrs. Keeler had the right to take the girls on alternate weekends. D was driving on a narrow mountain road after delivering the girls to their home. She met D driving in the opposite direction. D had the road blocked with his car. She talked to D who told her to stay away and then after looking at her abdomen he became 'extremely upset.' He then said he was going to stomp it out of her and then he proceeded to do so. She fainted, and when she regained consciousness petitioner had departed. She had suffered substantial facial injuries, as well as extensive bruising of the abdominal wall. A Caesarian section was performed, and the fetus was examined in utero. Its head was found to be severely fractured, and it was delivered stillborn. The cause of death was skull fracture with consequent cerebral hemorrhaging, that death would have been immediate, and that the injury could have been the result of force applied to the mother's abdomen. There was no air in the fetus' lungs, and the umbilical cord was intact. The fetus weighed five pounds and was 18 inches in length. The evidence was in conflict as to the estimated age of the fetus; the expert testimony on the point, however, concluded 'with reasonable medical certainty' that the fetus had developed to the stage of viability, i.e., that in the event of premature birth on the date in question it would have had a 75 percent to 96 percent chance of survival. D was charged with committing the crime of murder (Pen. Code, § 187) in that he did 'unlawfully kill a human being, to wit Baby Girl Vogt, with malice aforethought.' D's motion to set aside the information for lack of probable cause was denied, and he now seeks a writ of prohibition. Murder statutes only cover the death of a human being, not a fetus.