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McCarty v. State2/5/2002
ity under Section 713, the defendant is aware the woman is pregnant. The majority then describes eligibility for first degree murder by adding a third category, where the unborn child has reached the 24th week of pregnancy and medical testimony states it is viable. I would clarify this language because in some cases prosecution for first-degree murder would be appropriate where an unborn child is viable even if the pregnancy has not reached 24 weeks, or where the fetus has reached the 24th week of pregnancy and no evidence rebuts the presumption of viability. Following Hughes, I would hold that first degree murder charges are appropriate where the unborn child is viable, which may be proved through evidence that the fetus has reached 24 weeks or is capable of life outside the womb, with or without artificial aid.
Strubhar, J., Concurring in Part; Dissenting in Part:
I concur in affirming Counts I & II, the First Degree Murder convictions and sentences. I agree that this Court should reverse Count III, the First Degree Murder conviction for the death of the unborn fetus; however, I dissent to the modification of the conviction to First Degree Manslaughter under 21 O.S. 1991 § 713. I see no reason to overrule Tarver v. State and I would reverse Count III.
LILE, JUDGE: SPECIALLY CONCURS
This is not an abortion case. This is a murder case. The Court begins by citing Spencer by and through Spencer v. Seikel, 1987 OK 75, 742 P.2d 1126, a negligence case, for the proposition that " state's interest in protecting fetal survival becomes compelling at viability." Spencer drew this conclusion directly from Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, an abortion case. Roe weighed the mother's right to privacy (to elect an abortion) against the state's right to protect potential life (to proscribe abortions) and found that prior to viability the right to privacy was paramount, and at and after viability, the State's interest in prohibiting abortions becomes paramount. The Roe Court acknowledged the difficulty of its decision, recognizing that:
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Roe v. Wade, 93 S.Ct. 705, 410 U.S. 113, 35 L.Ed.2d 147 (1973).
The Courts, even in abortion cases have recognized that viability presupposes medical assistance. As stated in Roe, it is the "...point at which the fetus becomes 'viable', that is, potentially able to live outside the mother's womb, albeit with artificial aid." Id.
So, even for the purposes of these abortion cases and clearly in the context of homicide, viability means ability to live after delivery, with or without medical treatment.
There are no competing rights to weigh against the state's right to protect potential life in the case of homicide. Appellant obviously has no protected right to kill someone else's unborn infant. The State may prohibit the taking of human life by Homicide from the first spark of that life. Title 21 O.S. 1991, § 713, in the absence of a more inclusive statute, answers the question in this case. However, there is no constitutional prohibition on broader, more inclusive legislation that could further protect unborn children from homicide. Under our current statutes, death of a viable unborn child may be prosecuted as any other homicide case. If the child was not viable, but nevertheless quick, the crime would be manslaughter. The Legislature could constitutionall
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