At common law, a conviction of homicide was not possible unless the infant had been born alive. In the absence of proof that the child had ever breathed or was alive at birth a conviction cannot be sustained. It is necessary for the commonwealth to prove affirmatively, not only that the child had breathed, because that might occur during birth, but that it had had a complete and separate existence of its own after birth. When the evidence that the child was born alive is susceptible of doubt, a conviction can not be sustained.
The defendant was charged with murder. The trial court dismissed the indictment and held that destroying the life of a viable fetus was not considered murdering a person. The appellate court reversed and held that defendant could have been charged with such murder. The defendant appealed.
Can the defendant be charged with murder for destroying the life of a viable fetus?
The court held that the murder statute continued the common law rule limiting criminal homicide to the killing of one who had been born alive.