KEELER V. SUPERIOR COURT OF AMADOR COUNTY
470 P.2d 617 (Ca. 1970)
NATURE OF THE CASE: Keeler (D) was charged with murder for beating his wife, which caused
her fetus to be stillborn. The Superior Court of Amador City (California) denied D's motion
to set aside the information for lack of probable cause. D sought a writ of prohibition.
FACTS: D and Teresa Keeler obtained an interlocutory decree of divorce. At that time,
Teresa was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She began
living with Vogt in Stockton, but concealed the fact from D. D was given custody of their
two daughters, aged 12 and 13 years, and under the decree Mrs. Keeler had the right to take
the girls on alternate weekends. D was driving on a narrow mountain road after delivering
the girls to their home. She met D driving in the opposite direction. D had the road blocked
with his car. She talked to D who told her to stay away and then after looking at her
abdomen he became 'extremely upset.' He then said he was going to stomp it out of her and
then he proceeded to do so. She fainted, and when she regained consciousness petitioner had
departed. She had suffered substantial facial injuries, as well as extensive bruising of the
abdominal wall. A Caesarian section was performed and the fetus was examined in utero. Its
head was found to be severely fractured, and it was delivered stillborn. The cause of death
was skull fracture with consequent cerebral hemorrhaging, that death would have been
immediate, and that the injury could have been the result of force applied to the mother's
abdomen. There was no air in the fetus' lungs, and the umbilical cord was intact. The fetus
weighed five pounds and was 18 inches in length. The evidence was in conflict as to the
estimated age of the fetus; the expert testimony on the point, however, concluded 'with
reasonable medical certainty' that the fetus had developed to the stage of viability, i.e.,
that in the event of premature birth on the date in question it would have had a 75 percent
to 96 percent chance of survival. D was charged with committing the crime of murder (Pen.
Code, 187) in that he did 'unlawfully kill a human being, to wit Baby Girl Vogt, with
malice aforethought.' D's motion to set aside the information for lack of probable cause was
denied, and he now seeks a writ of prohibition. Murder statutes only cover the death of a
human being not a fetus.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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