Commonwealth v. Cass
1984 Mass. LEXIS 1726, 392 Mass. 799, 467 N.E.2d 1324 (1984)
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Rule of Law:
A viable fetus is a 'person' for the purposes of the Massachusetts vehicular homicide statute, G. L. c. 90, § 24G. This judicial reinterpretation of the common law, however, applies only prospectively to homicides occurring after the date of the decision.
Facts:
- On November 24, 1982, the defendant was operating a motor vehicle on a public way.
- The defendant's vehicle struck a female pedestrian who was eight and one-half months pregnant.
- The fetus died in the womb as a result of internal injuries sustained from the impact of the vehicle.
- The fetus was delivered by Caesarean section after its death.
- An autopsy determined that the fetus was viable at the time of the incident.
Procedural Posture:
- The defendant was charged in a Massachusetts District Court with homicide by motor vehicle.
- At the request of both the defendant and the Commonwealth, the District Court judge reported the case to the Appeals Court on a statement of agreed facts to resolve the controlling question of law.
- The Supreme Judicial Court of Massachusetts transferred the case from the Appeals Court for its own review before the Appeals Court could rule on it.
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Issue:
Does the term 'person' in the Massachusetts vehicular homicide statute, G. L. c. 90, § 24G, include a viable fetus?
Opinions:
Majority - Hennessey, C.J.
Yes, a viable fetus is a 'person' under the vehicular homicide statute. The court has the authority to interpret and evolve the common law definitions used in criminal statutes. The Legislature is presumed to have been aware of the court's decision in Mone v. Greyhound Lines, which held a viable fetus to be a 'person' under the wrongful death statute, when it enacted the vehicular homicide law shortly thereafter. Furthermore, the historical common law rule preventing a fetus from being a homicide victim was based on the difficulty of proving causation, a rationale that has been overcome by advances in medical science. The court concludes that the better rule is that inflicting prenatal injuries resulting in the death of a viable fetus constitutes homicide. However, because this decision was not foreseeable, it will be applied prospectively to avoid constitutional issues of fair warning.
Dissenting - Wilkins, J.
No, the term 'person' should not be judicially expanded to include a viable fetus in a criminal statute. This is a policy decision that should be made by the Legislature, not the judiciary. The court's decision is an 'unpredictable judicial decision' that ignores centuries of established criminal common law and the judicial restraint shown by every other court that has considered the issue. Criminal statutes must be strictly construed, and the court's reliance on a civil case (Mone) is inappropriate. If the court truly believed the Legislature intended this meaning, it should have applied the rule to the defendant; by making the ruling prospective, the court is essentially admitting it is creating new law, which is an 'exercise of raw judicial power' that intrudes upon the legislative function.
Analysis:
This decision represents a significant evolution of Massachusetts common law, departing from the traditional 'born alive' rule for homicide. By judicially redefining 'person' in a criminal statute to include a viable fetus, the court expanded the scope of criminal liability, a move most other jurisdictions have left to their legislatures. The prospective-only application of the ruling is a crucial aspect, demonstrating the court's attempt to balance its common law development power with constitutional due process concerns about fair notice. The case sets a precedent for Massachusetts courts to actively update common law definitions within criminal statutes to reflect modern realities, such as scientific advancements.
