The defendant was charged with the murder of her newborn baby.

A jury found her

guilty of manslaughter and she has appealed from the judgment.

The defendant was an unmarried woman about 21 years of age. She had previously
had an illegitimate child, and at about 12:30 a. m. on March 31, 1945, she gave birth
to the child here in question. She lived with her mother and sisters in a small house
having two bedrooms, with a bathroom off the kitchen porch. On this night the
mother slept in the back bedroom, and the defendant occupied the front bedroom
with her two sisters. She had attempted to conceal the fact of her pregnancy from
her family by wearing a girdle and loose sweaters.

The circumstances surrounding the birth of this baby are disclosed by the testimony
of the defendant alone, as there were no other eyewitnesses. After going to bed on
the evening of March 30, she had several attacks of what she called "cramps."
Apparently, she mistook her labor pains for cramps. Twice she arose and went
through the kitchen and back porch to the bathroom, and then returned to her bed.
She made a third trip about 12:30 a. m., the other members of her family being
asleep. She left the doors open and no lights were turned on. As she was sitting on
the toilet she "felt a little pressure on the lower bones. Then I knew the baby was
going to be born." She had not expected it to be born until the latter part of April. She
did not call for help and, so far as she knew, no one was awake. She testified that "It
came out rather slow. Next, the head was out, and it sort of dropped out real fast."
She knew from her previous experience that the placenta had to be removed and so,
after the baby was in the toilet "a little while," she expelled the placenta by putting
pressure on her stomach. She did not notice whether the baby's head was under
water, because the afterbirth fell over its head. It took two to three minutes for the
placenta to come out. She then turned on the light [77 Cal. App. 2d 623] and found
a napkin and pinned it on herself. She then removed the baby from the toilet, picking
it up by the feet, and cut the cord with a razor blade. She testified that the baby was
limp and made no cry; that she thought it was dead; and that she made no attempt to
tie the cord as she thought there was no use. She then laid the baby on the floor and
proceeded to take further care of herself and clean up the room. The baby remained
on the floor about fifteen minutes, after which she wrapped it in a newspaper and
placed it under the bath tub to conceal it from her mother. She then returned to bed
and the next day went about as usual, going to a carnival that evening. On the next
day, April 1, her mother discovered the body of the infant under the bath tub.

An autopsy was performed by a physician. He testified that the cord on the baby was
about eighteen inches long, untied and depleted of blood; that the baby would live
until it bled to death, in this case about an hour; that the baby appeared to be a full
nine-month child and weighed about 6 1/2 pounds; that it appeared normal in every
respect; that the lips were dark and swollen, but blood had been extravasated out of
the vessels into the tissues of the lips and cheeks; that the tongue was dark and
appeared hemorrhaged; that he opened the chest and stomach; that the lungs
appeared normal and had air in them, the texture of which could be followed; that
there was "crepitation"; that the heart and liver and other internal organs appeared
normal; and that the body had very little blood in it, indicating hemorrhage. He
expressed the opinion that the child was born alive, based on conditions he found
and the fact that the lungs contained air and the blood was extravasated or pushed
back into the tissues, indicating heart action. Although he admitted, on cross-
examination, that certain things were possible, he gave his reasons for excluding
them here and reaffirmed his opinion that this baby was born alive and that it had
had independent lung and heart action.

[1] The appellant first contends that there is no substantial evidence to support the
verdict in that it does not sufficiently appear from the evidence that this infant was
born alive and became a human being; that it appears from the testimony of another
doctor, called by the defense, that the doctor performing the autopsy did not use
certain tests which might have been used and did not open the infant's head and [77
Cal. App. 2d 624] heart which this other doctor thought might disclose some
possibilities; and that it follows that the question of whether this infant was born alive
and became a human being rests entirely on pure speculation.

While the autopsy surgeon expressed the firm opinion that this child was born alive,
giving his reasons therefor, he admitted that it was possible that the main factors on
which he based his opinion, the inflation of the lungs and the evidence of heart
action, could have resulted from the child's breathing after presentation of the head
but before the birth was completed. In other words, before there was a complete
separation of the child from the mother. The respondent has presented a very able
review and analysis of the leading cases along this line from the older and the
modern common law of England (Rex v. Poulton, 24 E.C.L.R. 590; Rex v. Enoch and
Pulley, 5 Carr. & Pay. 539; 24 E.C.L.R. 696; Rex v. Eliza Brain, 6 Carr. & Pay. 349;
25 E.C.L.R. 468; Rex v. Elizabeth Sellis, 7 Carr. & Pay. 850; 32 E.C.L.R. 905; Rex v.
Ann Crutchley, 7 Carr. & Pay. 813; 32 E.C.L.R. 887; Regina v. Reeves, 38 E.C.L.R.
27; Regina v. Ann Wright, 9 Carr. & Pay. 754; 38 E.C.L.R. 437; Regina v. Milborough
Trilloe, 1 Carr. & Mar. 650; 41 E.C.L.R. 352; Rex v. Pritchard, 17 T.L.R. 310) and
from other states in this country which still closely follow the common law rules in this
regard. (State v. Winthrop, 43 Iowa 519 [22 Am.Rep. 257]; Morgan v. State, 148
Tenn. 417 [256 S.W. 433]; Shedd v. State, 178 Ga. 653 [173 S.E. 847]; Jackson v.
Comm., 265 Ky. 295 [96 S.W.2d 1014].) While it would be interesting, in the interest
of brevity it seems unnecessary to review these cases here. Some of these cases
involve situations where an injury inflicted upon the mother resulted in the death of
an unborn child. Others seem to be based upon such theories as that unattended
childbirth is so violent a proceeding that the life of the child is in natural jeopardy or
that the mother, because of momentary insanity or because of physical disability,
should not be held responsible for a premeditated killing in the act of birth or for a
death resulting from neglect after birth. For these and similar reasons, very stringent
rules were developed at common law and have been largely followed in common law
states in this country. Most of these jurisdictions have bridged the gap thus resulting
by adopting various forms of infanticide statutes making the destruction of unborn
infants or of infants not completely born a crime, but providing for [77 Cal. App. 2d
625] a lesser punishment. While the matter was variously stated in these cases, and
while some of them are somewhat inconsistent with others, it was generally held
under the older common law that a child did not become a human being and could
not be the subject of a homicide until it was completely born alive, was entirely
separated from its mother and had an entirely independent life, with the cord cut and
with its own breathing and heart action. Some of the cases have gone to ridiculous
lengths, and others have varied some of the requirements, but these rules have
largely been retained in the modern common law and in common law states in this
country. While there have been some modifications of the rules these jurisdictions
still require a rather complete separation from the mother and a rather complete
demonstration that there was an entirely independent existence in the child before
considering the infant as a human being, although in some of the more modern
cases it has been held that the cutting of the cord was not necessary to this end.

Beyond question, it is a difficult thing to draw a line and lay down a fixed general rule
as to the precise time at which an unborn infant, or one in the process of being born,
becomes a human being in the technical sense. There is not much change in the
child itself between a moment before and a moment after its expulsion from the body
of its mother, and normally, while still dependent upon its mother, the child, for some
time before it is born, has not only the possibility but a strong probability of an ability
to live an independent life. It is well known that a baby may live and grow when
removed from the body of its dead mother by a Caesarian operation. The mere
removal of the baby in such a case or its birth in a normal case does not, of itself and
alone, create a human being. While before birth or removal it is in a sense
dependent upon its mother for life, there is another sense in which it has started an
independent existence after it has reached a state of development where it is
capable of living and where it will, in the normal course of nature and with ordinary
care, continue to live and grow as a separate being. While it may not be possible to
draw an exact line applicable to all cases, the rules of law should recognize and
make some attempt to follow the natural and scientific facts to which they relate. As
Judge Cardoza once said: "Let the facts be known as they are, and the law will
sprout from the seed and turn its branches toward the light." There is no sound
reason [77 Cal. App. 2d 626] why an infant should not be considered a human
being when born or removed from the body of its mother, when it has reached that
stage of development where it is capable of living an independent life as a separate
being, and where in the natural course of events it will so live if given normal and
reasonable care. It should equally be held that a viable child in the process of being
born is a human being within the meaning of the homicide statutes, whether or not
the process has been fully completed. It should at least be considered a human
being where it is a living baby and where in the natural course of events a birth which
is already started would naturally be successfully completed. While the question of
whether death by criminal means has resulted while the process of birth was being
carried out, or shortly thereafter, may present difficult questions of fact, those
questions should be met and decided on the basis of whether or not a living baby
with the natural possibility and probability of growth and development was being
born, rather than on any hard and fast technical rule establishing a legal fiction that
the infant being born was not a human being because some part of the process of
birth had not been fully completed.

The question presented has not been decided in this state. Section 192 of the Penal
Code provides: "Manslaughter is the unlawful killing of a human being, without
malice. ..." In Scott v. McPheeters, 33 Cal. App. 2d 629 [92 P.2d 678, 93 P.2d 562], it
was pointed out that the theory under another statute that an unborn child is a
human being separate and distinct from its mother is something more than a fiction
and is based upon scientific fact, common experience and knowledge. In fact, it
would be a mere fiction to hold that a child is not a human being because the
process of birth has not been fully completed, when it has reached that state of
viability when the destruction of the life of its mother would not end its existence and
when, if separated from the mother naturally or by artificial means, it will live and
grow in the normal manner. In practical effect, the rules that have developed at
common law furnish a presumption that the baby in question is, or will be, born dead.
This presumption is not only contrary to common experience and the ordinary course
of nature, but it is contrary to the usual rule with respect to presumptions followed in
this state. Section 1963 (28) of the Code of Civil Procedure provides that, while it
may be disputed, it is to be presumed "that things have happened according to
the [77 Cal. App. 2d 627] ordinary course of nature and the ordinary habits of life."
While this presumption may not be sufficient for every purpose it is not only some
evidence, but it suggests the proper manner of approach in considering all of the
evidence.

Without drawing a line of distinction applicable to all cases, we have no hesitation in

holding that the evidence is sufficient here to support the implied finding of the jury
that this child was born alive and became a human being within the meaning of the
homicide statutes. That it became a human being does not rest upon pure
speculation. The evidence is sufficient to support a finding, beyond a reasonable
doubt, that a live child was actually born here, and that it died because of the
negligence of the appellant in failing to use reasonable care in protecting its life,
having the duty to do so. This baby was completely removed from its mother and
even the placenta was removed. A factual question was presented and the opinion
of the autopsy physician was evidence which could be considered by the jury. His
opinion was that the baby was born alive and that it breathed and had heart action.
He gave good reasons for that opinion and while he admitted that there could be a
possible doubt his evidence justifies the inference that there was no valid ground for
a reasonable doubt. While he admitted that he had not used certain tests suggested
by the other doctor he stated that he knew of these tests but he did not consider
them necessary here. With respect to the test most relied upon by the defense, it
was stated by both doctors that this test would show only what the autopsy physician
testified he had discovered by other means. The doctor called by the defense had
not seen the baby's body and his testimony was based upon his general laboratory
experience. While it may be said that there was some conflict between the testimony
of these two doctors no more than a conflict appears. The question was one of fact
for the jury and, in our opinion, the evidence is sufficient to support its findings. If it
could be said that there might be a possible doubt with respect to this phase of the
case, it cannot be said that there was necessarily a reasonable doubt. The finding of
the jury is sufficiently supported, and the implied finding that this was a human being
rests on a factual basis and not upon speculation.

[2a] The appellant further contends that the evidence is insufficient to show that the
death of this infant was caused by a criminal act. It is argued, in this connection, that
the [77 Cal. App. 2d 628] autopsy surgeon was unable to state precisely what
caused the death of the infant and that it follows that the question as to the cause of
the death rests on speculation and conjecture. It is pointed out that this doctor gave
as the cause of death both suffocation and hemorrhage from an untied umbilical
cord, and that he admitted that it was very difficult to determine which of these
actually caused the death. He described the conditions he found in the body of the
infant, including certain things which indicated that suffocation had taken place and
other things which indicated an excessive hemorrhage. While he testified that the
cause of death was very likely hemorrhage he later stated that it could be both of
these things. He reaffirmed his opinion that one or both of these things caused the
death although he admitted the possibility that the baby could have died of brain
hemorrhage, saying "anything is possible." This doctor expressed a fixed opinion
that the death resulted from one or both of these things and gave substantial
reasons for that opinion. The fact that he was unable or unwilling to attribute the
death to one of these causes alone does not make this evidence mere speculation or
conjecture, and does not affect the question as to whether the death resulted from a
criminal act.

There is ample evidence that such was the case. Penal Code section 192 defines
involuntary manslaughter as the unlawful killing of a human being "in the commission
of a lawful act which might produce death ... without due caution and
circumspection." [3] The failure to use due care in the treatment of another where a
duty to furnish such care exists is sufficient to constitute that form of manslaughter
which results from an act of omission. (People v. Montecino, 66 Cal. App. 2d 85 [152
P.2d 5].) [2b] While the circumstances here are distressing, the evidence indicates a
complete failure on the part of the appellant to use any of the care towards this infant
which was necessary for its welfare and which was naturally required of her. While it
is conceivable that in some such cases the mental and physical condition of a
mother, at the time, might prevent her from exercising that reasonable care which
would ordinarily be required, and thus excuse her from blame for the consequences
of her failure to act, no such situation here appears. The appellant's own testimony
discloses not only that she had a full realization of the situation but that she was able
to think clearly and act with definite ends in view. With plenty of assistance near
at [77 Cal. App. 2d 629] hand she intentionally chose not to call for any help.
Although she knew that the baby had dropped into the toilet she made no effort to
rescue it or care for it for some time. Knowing that the placenta should be removed
she gave her first attention to that. Even after that was accomplished she got up,
turned on the light and proceeded to care for herself. Only after this was done and
some seven minutes after the baby was born did she pick up the infant and make
any effort to observe its condition. Even then her actions were very perfunctory and
she made no effort to do anything, or to call for aid, in order to take care of the baby
and attempt to preserve its life. She then let it remain on the floor in a cold room for
some fifteen minutes while she attended to other things, after which she put it in a
newspaper and hid it under the tub. Even the appellant's own medical expert testified
that a child born under these circumstances would die. The evidence is entirely
sufficient to show that the death of this infant was caused by a criminal act.

The judgment is affirmed.