Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (Cal. 1970)
Keeler v. Superior Court is a foundational California Supreme Court case at the intersection of criminal law, statutory interpretation, and constitutional fair-warning principles.
Does California Penal Code section 187's use of the term "human being" encompass an unborn yet viable fetus such that the intentional killing of that fetus constitutes murder under the statute as it existed prior to the 1970 amendment?
Under the pre-1970 version of California Penal Code section 187, "murder" was defined as the unlawful killing of a "human being" with malice aforethought. Construed in light of the common law and settled legislative usage, a "human being" for homicide purposes is one who has been born alive; an unborn fetus is not included. Penal statutes are construed strictly under the rule of lenity, and due process forbids retroactive judicial enlargement of a criminal statute in a manner that deprives a defendant of fair warning (Bouie v. City of Columbia). Any expansion of criminal liability beyond the statute's fair import is for the Legislature, not the courts.
No. An unborn but viable fetus was not a "human being" under Penal Code section 187 as it then existed. The California Supreme Court granted a peremptory writ prohibiting the superior court from proceeding with the murder charge.
Keeler is a leading case on statutory interpretation in criminal law and the constitutional limits on judicial expansion of penal statutes. It illustrates the born-alive rule's historical role, the rule of lenity, and the due process fair-warning principle that functions like an ex post facto restraint on courts. The decision catalyzed legislative reform: California amended Penal Code section 187 in 1970 to explicitly include the unlawful killing of a fetus (subject to exceptions), and later cases clarified that viability is not required under the amended statute. For law students, Keeler is essential for understanding how courts balance textual fidelity, historical meaning, policy considerations, and constitutional notice in defining the scope of criminal liability.