State v. Keller - 592 So. 2d 1365 (La. Ct. App. 1991)

Rule:

While the killing of an unborn child might constitute feticide, as provided in La. Rev. Stat. Ann. § 14:32.5-.8, under the current state of the jurisprudence, a fetus is not considered a human being for purposes of the homicide statutes. The 1976 amendment of La. Rev. Stat. Ann. § 14:2(7) does not have the effect of redefining the term human being contained in La. Rev. Stat. Ann. § 14:29. Nevertheless, La. Rev. Stat. Ann. § 14:2(7) as amended, provides, in pertinent part that person includes a human being from the moment of fertilization and implantation.

Facts:

The defendant, Gregory D. Keller, was charged by grand jury indictment with first degree murder. La. R.S. 14:30A (3). Specifically, the indictment charged when the defendant killed a pregnant woman, Andrea Simmons, and her unborn child. The defendant filed a motion to quash the indictment claiming that a fetus could not be considered a person for purposes of La. R.S. 14:30A (3) and, therefore, he could not be charged with first degree murder. After a hearing, the trial court denied the motion. The defendant applied for supervisory writs with this court but was denied. Defendant then applied for supervisory writs with the Supreme Court which granted the writ application and remanded the case to this Court for briefing, arguing, and an opinion.

Issue:

Should an unborn child or fetus can be considered a person for purposes of HN2 La. R.S. 14:30A (3)?

Answer:

Yes. The denial of defendant's motion to quash the indictment filed against him was affirmed.

Conclusion:

The court held that under § 14:30A (3), first degree murder was the killing of a human being when the offender had a specific intent to kill or to inflict great bodily harm upon more than one person. Further, under La. Rev. Stat. Ann. § 14:2(7), a person included a human being from the moment of fertilization and implantation. Therefore, in a situation involving two victims, if someone killed a human being, i.e., one born alive, while possessing the specific intent to kill or to inflict great bodily harm upon two persons, such conduct constituted first degree murder under § 14:30A(3), regardless of whether the other person was a human being born alive or was a fetus. The trial court's denial of defendant's motion to quash was affirmed and the case was remanded.