specially concurs:
I also have reservations about Treva La-nan Hughes going without punishment. I hope the loss of a life goes with her but due to the change in the law, she is without legal punishment. Her actions will be with her for the rest of her life.
The new rule of law established herein will last long into the future. It is right and it is just.
STRUBHAR, Judge,specially concurs:
I concur in the opinion of the Court. It is worrisome to acknowledge that this Court has waited until the dawn of the twenty-first century to adopt an evidentiary principle to determine a “human being” and to reject the born alive rule. I applaud the previous recognition of this principle by the Oklahoma Supreme Court in Evans v. Olson 550 P.2d 924 (Okl.1976). We this date properly overruled State v. Harbert, 758 P.2d 826 (Okl.Cr.1988).
I must also regrettably concur with the decision of the Court to reverse this defendant’s judgment and sentence for first degree manslaughter. I wish to reiterate the statement of the Court that the fact that this Appellant will essentially go unpunished for this crime is frustrating. I too believe that there are fundamental principles of due process that are so preciously guarded by the legal system of our Country that I feel compelled to concur with the conclusion reached by the Court.
LUMPKIN, Presiding Judge:concurs in part/dissents in part.
I concur in the Court’s well-reasoned determination the term “human being” pursuant to 21 O.S.1981, § 691, includes a viable human fetus. It is consistent with that holding we also overrule State v. Harbert, 758 P.2d 826 (Okl.Cr.1988). This action allows us to sever the umbilical cord which has linked our law of evidence with antiquity long after the light of medical knowledge has dispelled the myths of the past. Our delay in acknowl*737edging this evidentiary principle is especially regrettable since almost twenty years ago the Oklahoma Supreme Court recognized in Evans v. Olson, 550 P.2d 924, 927-28 (Okl.1976), the rights of an unborn viable child to be compensated for injuries which occurred prior to birth, together with the right of a cause of action for the wrongful death of an unborn viable child.
However, the Court stopped short in its application of the law to the facts of this ease and I must dissent to the Court’s decision the judgment and sentence for First Degree Manslaughter must be reversed and remanded with instructions to dismiss. The Court, in effect, recognizes the “bom alive rule” is evidentiary, not substantive, in nature. Disregarding the fact we are dealing with an evidentiary matter rather than an issue of substantive criminal law, the Court then er-rantly determines this item of evidence cannot be applied to this Appellant. The Court cites 12 O.S.1981, § 2, for the legal principal the common law is applicable in Oklahoma. It should be noted 12 O.S.1981, § 1, states “this chapter shall be known as the code of civil procedure of the State of Oklahoma”. The Code of Criminal Procedure, 22 O.S. 1981, § 1, et seq. provides at Section 9, “[t]he procedure, practice and pleadings in the courts of record of this State, in criminal actions or in matters of criminal nature, not specifically provided for in this code, shall be in accordance with the procedure practice and pleadings of the common law”. While I do not disagree the common law can serve as an aid to interpretation, See State v. Barnett, 60 Okl.Cr. 355, 372-73, 69 P.2d 77 (1937); Stewart v. State, 4 Okl.Cr. 564, 565-66, 109 P. 243 (1910); Shires v. State, 2 Okl.Cr. 89, 90 (syllabus), 99 P. 1100 (1909), there are no common law crimes in this State, as is made clear by 21' O.S.1981, § 2. See also Hisel v. State, 97 Okl.Cr. 356, 366, 264 P.2d 375 (1954). Therefore, the application of 21 O.S. 1981, § 691, is an application of a substantive criminal statute which was originally codified in 1910. The discussion regarding retroac-tivity and foreseeability is therefore inappropriate, and not applicable. To apply the discussion of retroactivity to new methods of evidentiary proof would, in effect, mean each conviction which resulted from the adoption of new technologies or methods of meeting the burden of proof would be required to be reversed and dismissed because a defendant could not have foreseen the ability of the State to have proved the elements through that methodology. I do not believe any Court knowingly desires to adopt that jurisprudence.
The second basis of my dissent to the Court’s decision to reverse and dismiss the conviction of Manslaughter relates to the determination the child was dead upon delivery. The evidence indicates that as a result of an automobile accident between Appellant and an expectant mother, a viable unborn child was injured. The accident occurred on August 2, 1990. The mother had been examined by her obstetrician on July 30, the unborn child was viable and the due date for delivery was set at August 6, four (4) days after the accident. At the time of the accident, the mother was thrown forward and her stomach hit and broke the steering wheel. Upon arrival at the hospital, a fetal heartbeat of 70-90 beats per minute was detected. After an emergency caesarean section was performed, the baby was delivered at 9:02 p.m. The baby had a heartbeat, but was not breathing on its own or moving. A placenta abruption was observed by the attending physician. Upon delivery, the baby was given to a pediatrician, who attempted resuscitation efforts; however, the baby’s condition deteriorated rapidly and the heartbeat did not improve. The baby was pronounced dead at 10:10 p.m., over an hour after delivery. The medical examiner testified the child would have lived absent the trauma. It must also be noted, the physician who made the statement the child was brain dead when born did so only on the basis of a visual observation. The child was not placed on a monitor to determine activity in the brain.
I find the Court has erred in its scope of review. The opinion seems to forget this Court is not to substitute its view of the evidence for the jury’s; rather, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the *738crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985). In the light most favorable to the prosecution, a baby who had a heartbeat before and after delivery, and who was not pronounced dead until over an hour after delivery, was alive. Thus, the verdict of the trier of fact should be affirmed. This is made clear by our Legislature’s definition of “live birth” as it is used in connection with vital statistics governing birth and death:
The term ‘live birth’ means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion of extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.
63 O.S.Supp.1986, § l-301(e) (emphasis added). The Court seeks to avoid this statute by limiting its application based on it being a “vital statistic statute”. However, as the Oklahoma Supreme Court noted when it adopted the language from Corpus Juris Sec-undum, “[i]n general, the location of statutes in particular places in codes does not affect their force or validity”. See Green v. Green, 309 P.2d 276, 278 (Okl.1957). This is an action of the Legislature to provide a definition for the term “live birth” which is sufficient to abrogate the application of common law definitions.
This act of the Legislature also dilutes the Court’s discussion of the foreseeability of the inclusion of a “viable human fetus” as a human being within the meaning of Section 691. In that analysis of the applicability of this decision to the present case, it also seems to at least infer this Court’s previous decision in Harbert contributed to the Appellant’s inability to “forsee” the acts committed as being criminal acts. The Court should not use this prior, patently erroneous, decision as a basis to find the crime in this case was not foreseeable by Appellant.
While the baby may not have had much of a chance, there was clearly a “live birth” as our Legislature has defined it. Under the evidence presented here, the baby was born alive, then died as a result of injuries sustained by Appellant’s actions. The Court can arrive at this result by applying existing common law precepts and statutory language in place at the time Appellant committed the offense. This is especially true in light of the 1976 decision by the Oklahoma Supreme Court in Evans v. Olson.
Based on the law and evidence applicable to the facts of this case, I would affirm the judgment and sentence for manslaughter, first degree, together with the judgment and sentence for driving under the influence while involved in a personal injury accident. However, under the Court’s opinion in this case, the victim, Nichole Michelle Hodgens, has provided the impetus for a very positive change in our law. She should therefore be remembered as a person who has contributed to the betterment of our society.