The relator, Jeff Atkinson, seeks to prohibit his murder trial in the Circuit Court of Hancock County on the ground that the court is without jurisdiction to try him. In support of his request for a writ of prohibition, he argues that neither our murder statute, W.Va.Code, 61-2-1, nor its attendant common law principles provide criminal *353sanctions for the murder of an unborn child.
On September 23,1981, Teri Lynn Gooch, who was approximately thirty-seven weeks pregnant, was robbed and killed in her home. According to the medical examiner, her unborn child, Mark Alan Gooch, died within minutes of her death. The relator has already been convicted of first degree murder for killing Teri Lynn Gooch. The underlying prosecution in this case is for the death of her unborn child.
The circuit court concluded that it had jurisdiction to try the relator. After acknowledging that at common law a person could not be prosecuted for the murder of an unborn child, the court reasoned that this common law rule should be modified in light of medical advances that enable a doctor to render a reliable opinion on the viability of an unborn child. The circuit court placed considerable emphasis on Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971), where we recognized that a tort action for wrongful death could be brought on behalf of a viable unborn child.1
"Under the provisions of Sections 5 and 6, Article 7, Chapter 55, Code, 1931, as amended, the wrongful death statute of this State, an action may be maintained by the personal representative of a viable unborn child for the wrongful death of such child caused by injuries sustained by it while in the womb of its mother resulting from the negligence of the defendant and, upon sufficient proof, such damages as may be recoverable under the statute may be awarded in such action.”
Because this is a legal issue of first impression in this State, we granted the petition for a writ of prohibition and issued a rule to show cause.2 We conclude that the circuit court was without jurisdiction.
All of the parties in this proceeding agree that at common law, the killing of a viable unborn child was not murder.3 Furthermore, the parties also agree that our murder statute, W.Va.Code, 61-2-1,4 is not specific on this point and that we must rely *354on common law principles. We stated in Syllabus Point 5 of State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978), that our murder statute does not define the substantive elements of murder: “W.Va.Code, 61-2-1, was not designed primarily to define the substantive elements of the particular types of first degree murder, but rather was enacted to categorize the common law crimes of murder for the purpose of setting degrees of punishment.” Similarly, in State v. Starkey, 161 W.Va. 517, 523, 244 S.E.2d 219, 223 (1978), we pointed out that: “It is clear that our murder statute is not designed to cover all the essential elements of murder.”5
. The critical issue is whether we have the authority to alter the common law rule that an unborn child cannot be the victim of a murder. In Spencer v. Whyte, 167 W.Va. 772, 775, 280 S.E.2d 591, 593 (1981), we were asked to construe our probation statute so that a term of imprisonment could be given as a part of probation when the statute, W.Va.Code, 62-12-9, was silent on this subject. We declined to do so, stating:
“We have traditionally recognized that the legislature has the primary right to define crimes and their punishments subject only to certain constitutional limitations. State ex rel. Cogar v. Kidd, [160 W.Va. 371], 234 S.E.2d 899 (1977); State ex rel. Heck’s v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950).... It is because of the legislative primacy in this area that we consider the right to determine the conditions under which a sentence can be suspended and a person placed on probation to be a legislative prerogative. Probation is inextricably tied to the setting of punishment, which is the legislature’s domain.” (Citations omitted).
The Virginia Supreme Court has been even more explicit by stating in Taylor v. Commonwealth, 187 Va. 214, 220, 46 S.E.2d 384, 387 (1948): “The General Assembly alone has power to define crimes against this Commonwealth. This power cannot be delegated to the courts, or to individuals, or corporations.” In W. LaFave & A. Scott, supra, at 57-69, the issue of whether or not courts can create new common law crimes is discussed at length. The authors indicate that the modern view is that there is diminished authority for such a position6 and conclude:
“It was only natural that judges should create crimes from general principles in medieval England, because such legislature as there was sat only infrequently and legislation was scanty. Today in the United States, as in modern England, the various legislatures meet regularly. The principal original reason for common law crimes has therefore disappeared.” W. LaFave & A. Scott, supra, at 68-69.
In Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979), we discussed at length our ability to alter common law principles in view of Section 13 of Article VIII of the West Virginia Constitution7 and W.Va.Code, 2-1-1.8 Af*355ter a thorough review of similar enactments in other states, we concluded that:
“The historical purpose of such provisions was to declare what sources would initially constitute the organic law which would govern the body politic. We do not find any jurisdiction which adheres to the view that such provisions were adopted to freeze the common law for the courts as of the date the particular provision was enacted.” 162 W.Va. at 874, 253 S.E.2d at 675.9
Momingstar dealt with defining a rule on product liability, which is in the area of tort law. Courts, in their common law capacity, have traditionally played a major role in evolving tort principles on a case-by-case basis. We recognized this fact in Bradley v. Appalachian Power Co., 163 W.Va. 332, 350, 256 S.E.2d 879, 889 (1979), where we reexamined and altered our rule of contributory negligence, stating: “The issue falls within the field of tort law, which historically has not been a settled area of the law such as property or contracts, but has been subject to continual change by the courts and legislatures to meet the evolving needs of an increasingly mobile, industrialized and technological society.” (Footnote omitted). See also Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 710-711, 289 S.E.2d 679, 687 (1982); Hill v. Joseph T. Ryerson & Son, Inc., 165 W.Va. 22, 30-31, 268 S.E.2d 296, 303 (1980); W. Prosser, Law of Torts 19-21 (4th ed. 1971); Green, The Thrust of Tort Law: (Part I) The Influence of Environment, (Part II) Judicial Law Making, (Part III) The Scientific Environment, 64 W.Va.L.Rev. 1, 115 and 241 (1961-62).
Thus, there exists a distinction between a court’s power to evolve common law principles in areas in which it has traditionally functioned, i.e., the tort law, and in those areas in which the legislature has primary or plenary power, i.e., the creation and definition of crimes and penalties. It is in this context that Baldwin, in which we recognized the right to file a wrongful death action on behalf of a viable unborn child, must be considered. This Court in Baldwin was operating in its common law tort tradition, aided by the provisions of our Wrongful Death Act, W.Va.Code, 55-7-5 through -8, which we noted has historically been liberally construed because the Act is remedial.
Furthermore, we believe there are fundamental policy reasons why it is appropriate for this Court to defer the creation of new crimes to the legislature. First, besides having the primary right to create new crimes, the legislature is composed of persons proportionately elected at more frequent intervals than are the members of this Court. Obviously, the legislature is more closely attuned to and representative of the public will than this Court. Second, in the creation and definition of a new crime, the legislature is able to make more discreet distinctions as to the degrees of the offenses and to graduate the penalties to match the severity of the offenses whereas this Court would be limited to the facts before it and could only apply the newly created crime prospectively. See Bouie v. Commonwealth, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
An excellent illustration of the legislature exercising its criminal law authority is our sexual offense statute, W.Va.Code, 61-8B-1 through -12, which supplanted W.Va. Code, 61-2-15, our former rape statute. The rape statute evolved from the common law and provided hardly any graduation in the offense. As a consequence, rape convictions were difficult to obtain. See State v. Reed, 166 W.Va. 558, 563, 276 S.E.2d *356313, 317-18 (1981).10
We have on occasion altered common law rules in the criminal field, but in these cases the alteration was of a procedural nature and did not create a new class or category of crime. For example, in State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980), we concluded that aiders and abettors and accessories before the fact could be indicted as principals in the first degree. Part of our reasoning was based on the fact that the legislature had abolished any distinction between these categories by mandating that the punishment be the same for each of the categories. W.Va. Code, 61-11-6. In State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), we concluded that venue in a criminal case is not an element of the substantive criminal offense and, therefore, it may be proved by a preponderance of the evidence. See also State v. Grimmer, 162 W.Va. 588, 593-94, 251 S.E.2d 780, 785 (1979), overruled on other grounds, State v. Petry, supra.
There is a considerable difference between this Court making alterations in criminal procedure or practice rules, authorized under our constitutionally recognized rulemaking power,11 and creating a new crime.
Since the submission of this case, the respondents direct our attention to two courts that have created, through their common law powers, the crime which they refer to as “feticide.” In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the court, in a brief opinion without any discussion of its power to create new common law crimes, held that the murder of a viable unborn child would henceforth be a crime.12
In Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), by a 4-3 opinion, the court held that its vehicular homicide statute was sufficiently broad to permit prosecution for the death of a viable unborn child. Both Horne and Cass made their rulings prospective, citing Bouie v. Commonwealth, supra, so that neither of the defendants could be prosecuted under their newly formulated crimes. The dissent in Cass pointed to the familiar rule that criminal statutes must be strictly construed 13 and termed the majority’s opinion as “an inappropriate ‘exercise of raw judicial power.’ ” 392 Mass. at 809-810, 467 N.E.2d at 1330.
We are not persuaded by the reasoning of Home or Cass and believe that a proper exercise of judicial restraint forbids us from following their course. We, therefore, conclude that neither our murder stat*357ute, W.Va.Code, 61-2-1, nor its attendant common law principles authorize prosecution of an individual for the killing of a viable unborn child. This matter must be left to the good judgment of the legislature, which has the primary authority to create crimes.
For the foregoing reasons, we grant the writ of prohibition.
Writ Awarded.
. The single Syllabus Point in Baldwin states:
. Our traditional test for prohibition is stated in State ex rel. Arnold v. Egnor, 166 W.Va. 411, 422, 275 S.E.2d 15, 22 (1981): "Our law is settled that a writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers. Syllabus Point 3, State ex rel. McCartney v. Nuzum, [161 W.Va. 740], 248 S.E.2d 318 (1978); State ex rel. Scott v. Taylor, 152 W.Va. 151, 160 S.E.2d 146 (1968).”
. This English common law rule is summarized in 4 S. Stephen, Commentaries on the Laws of England 58 (1914):
"[T]o kill a child in its mother’s womb is not murder, for murder must be of some one in being.... If, however, the child is born alive, and dies by reason of injuries received in the womb, or in the act of birth, the person who deliberately inflicted those injuries may be guilty of murder.” (Footnotes omitted).
See also 4 W. Blackstone, Commentaries on the Laws of England *198; 3 E. Coke, Institutes *58; W. LaFave and A. Scott, Handbook on Criminal Law 530-32 (1972).
The Supreme Court of California in Keeler v. Superior Court, 2 Cal.3d 619, 625-27, 470 P.2d 617, 620-21, 87 Cal.Rptr. 481, 484-85, 40 A.L.R.3d 420, 424-26 (1970) (In Bank), cited a number of English cases supporting the born-alive rule, among which were Rex v. Brain (1834) 6 Carr. & P. 349, 172 Eng.Rep. 1272, Rex v. Sellis (1836) 7 Carr. & P. 850, 173 Eng.Rep. 370, and Rex v. Crutchley (1836) 7 Carr. & P. 814, 173 Eng.Rep. 355, and referred to Atkinson, Life, Birth and Live-birth, 20 L.Q. Rev. 134 (1904), for additional English authorities.
The vast majority of American courts have held, in accordance with the common law, that in the absence of legislation to the contrary, the killing of an unborn child cannot be the basis for a charge of murder. Clarke v. State, 117 Ala. 1, 23 So. 671 (1898); Keeler v. Superior Court, supra; Ranger v. State, 249 Ga. 315, 290 S.E.2d 63 (1982); People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980); State v. Winthrop, 43 Iowa 519 (1876); Hollis v. Commonwealth, 652 S.W.2d 61 (Ky.1983); State v. Gyles, 313 So.2d 799 (La.1975); People v. Guthrie, 97 Mich.App. 226, 293 N.W.2d 775 (1980); State in the Interest of A.W.S., 182 N.J.Super. 278, 440 A.2d 1144 (1981); State v. Willis, 98 N.M. 771, 652 P.2d 1222 (1982); People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23 (1949); State v. Sogge, 161 N.W. 1022 (N.D.1917); State v. Dickinson, 28 Ohio St.2d 65, 275 N.E.2d 599 (1971); State v. Amaro, 448 A.2d 1257 (R.I.1982); Harris v. State, 28 Tex.App. 308, 12 S.W. 1102 (1889); State v. Larsen, 578 P.2d 1280 (Utah 1978); Bennett v. State, 377 P.2d 634 (Wyo.1963); Annot., 40 A.L.R.3d 444 (1971).
.The relevant portion of W.Va.Code, 61-2-1, is: "Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree.”
. In several other cases where our criminal statutes do not define all the elements of the crime, we have applied the common law elements. E.g., State v. Harless, 168 W.Va. 707, 285 S.E.2d 461 (1981) (W.Va.Code, 61-2-12, on robbery); State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981) (W.Va.Code, 61-3-13, on larceny).
. The United States Supreme Court has held that there are no federal common law crimes and unless Congress has enacted a statute declaring the conduct to be a crime, it cannot be federally prosecuted. James v. United States, 366 U.S. 213, 224-25, 81 S.Ct. 1052, 1058, 6 L.Ed.2d 246, 256-57 (1961) (Black, J., concurring and dissenting); United States v. Eaton, 144 U.S. 677, 687, 12 S.Ct. 764, 767, 36 L.Ed. 591, 594 (1892); United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33-34, 3 L.Ed. 259, 260 (1812). Furthermore, it would appear that the current English view is that the creation of new crimes lies with Parliament and not the courts. Smith, Judicial Law Making in the Criminal Law, 100 L.Q.Rev. 46 (1984).
. Article VIII, Section 13 of the West Virginia Constitution provides: "Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.”
. W.Va.Code, 2-1-1, states:
"The common law of England, so far as it is not repugnant to the principles of the Consti*355tution of this State, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the legislature of this State.”
. We also stated in Syllabus Point 2 of Morning-star: "Article VIII, Section 13 of the West Virginia Constitution and W.Va.Code, 2-1-1, were not intended to operate as a bar to this Court’s evolution of common law principles, including its historic power to alter or amend the common law.”
. Legislatures in a number of states have modified the common law born-alive rule by enacting statutes that establish criminal penalties for the murder of a viable unborn child. See Cal.Penal Code § 187 (West 1970); Fla.Stat. § 782.09 (1971); Ill.Rev.Stat. ch. 38, § 9-1.1 (1981); Miss.Code Ann. § 97-3-37 (1942); Okla. Stat.tit. 21, § 713 (1910); R.I.Gen.Laws § 11-23-5 (1975). In California and Illinois, the respective statutes were apparently legislative responses to Keeler v. Superior Court, 2 Cal.3d 619, 470 P.2d 617, 87 Cal.Rptr. 481, 40 A.L.R.3d 420 (1970) (In Bank), and People v. Greer, 79 Ill.2d 103, 37 III.Dec. 313, 402 N.E.2d 203 (1980), in which the supreme courts of those two states held that it was up to the legislature to create the crime of feticide and not the judiciary. See Comment, Feticide in Illinois: Legislative Amelioration of a Common Law Rule, 4 N.Ill. U.L.Rev. 91 (1983). Under these legislative enactments, the penalty for the murder of an unborn child is often less severe than under the regular murder statute.
. Section 3 of Article VIII of the West Virginia Constitution provides, in part: “The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process practice and procedure, which shall have the force and effect of law.”
. Home cited as its authority to create new common law crimes State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981), and State v. Mouzon, 231 S.C. 655, 99 S.E.2d 672 (1957). In Brooks, the court determined that as an element of burglary, "the intent to commit a felony” would be expanded to include the intent to commit a misdemeanor also. In Mouzon, there is no indication in the court's opinion that it was changing the common law to create a new crime.
. We have utilized this rule in a number of cases, as illustrated by Syllabus Point 2 of State v. Ball, 164 W.Va. 588, 264 S.E.2d 844 (1980): " ‘Penal statutes must be strictly construed against the State and in favor of the defendant.' Syl. pt. 3, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970)."