State v. Cornelius - 152 Wis. 2d 272, 448 N.W.2d 434 (Ct. App. 1989)

Rule:

Wis. Stat. § 939.22(16) defines "human being" when used in the homicide statutes as meaning one who has been born alive.

Facts:

Plaintiff, State of Wisconsin, appealed the dismissal of two counts of homicide against the defendant, Maurice Cornelius at the completion of the preliminary hearing. Defendant's homicide charges stemmed from an auto accident that fatally injured a fetus. The parties dispute whether the fetus died prior to or after its birth. The trial court held that the fetus was not born alive and therefore could not be considered the victim of a homicide. The court also found that even if the infant had survived for some period independently of his mother, as a matter of law no homicide had been committed. On appeal, the court disagrees and accordingly reversed and remand for reinstatement of the charges.

Issue:

Did the defendant guilty of the homicide of the fetus?

Answer:

Yes.

Conclusion:

The court reversed the order dismissing the homicide counts against defendant because the undisputed facts established that there was probable cause to believe that the alleged homicides had been committed and remanded reinstatement of the charges. The court looked at Wis. Stat. § 939.22(16), which defined a human being when used in the homicide statutes as meaning one that was born alive. The court next looked to Wis. Stat. § 146.71 for a definition of death. The court found that the infant was not dead because at birth he had not suffered irreversible cessation of circulatory and respiratory functions and because his attempts at respiration indicated brain stem activity. The homicide statutes, Wis. Stat. §§ 940.09(1)(a) and (b), required that defendant cause the death of someone who was born alive and placed no limitations on the nature or timing of the death. Therefore, the defendant could be convicted under those statutes.