dissenting:
In this tragic case, a pregnant woman was robbed and killed in her home. She was 37 weeks pregnant. Her unborn child died within minutes of her death. In cases of this nature, the death of neither the mother nor the unborn child should go unpunished. While I agree with the majority that this State’s murder statute “does not define the substantive elements of murder” and that common law has traditionally declared that “an unborn child cannot be the victim of murder,” this Court could properly determine that an individual could be prosecuted for the killing of a viable unborn child. I therefore respectfully dissent.
The Supreme Judicial Court of Massachusetts in Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), had before it a statute which provided that whoever operates a motor vehicle while under the influence of intoxicating liquor or marihuana, etc., and causes the death of another “person,” shall be guilty of “homicide by a motor vehicle.” The defendant, while driving a motor vehicle, struck a pregnant female pedestrian and caused the death of the pedestrian’s viable fetus.
The court in Cass held that a viable fetus is a “person” under the statute in question. In so holding, the court rejected the assertion that it was unable to develop common law rules of criminal law where the legislature had promulgated criminal law statutes. The court also rejected the assertion that, by using the term “person” in the vehicular homicide statute, the legislature intended to crystallize the preexisting, limited definition of “person” at common law. Finally, the court concluded that the rule of strict construction of criminal statutes did not prevent the court from construing the word “person” to include viable fetuses. 392 Mass. at 803, 467 N.E.2d at 1327. The court in Cass stated:
We think that the better rule is that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. If a person were to commit violence against a pregnant woman and destroy the fetus within her, we would not want the death of the fetus to go unpunished. We believe that our criminal law should extend its protection to viable fetuses.
392 Mass. at 807, 467 N.E.2d at 1329.
In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the Supreme Court of South Carolina held that an action for criminal homicide could be maintained for the death of a viable unborn child. The court in Horne stated: “The fact this particular issue has not been raised or ruled on before does not mean we are prevented from declaring the common law as it should be.” 282 S.C. 447, 319 S.E.2d at 704.
It seems inconsistent to me to declare that “an action may be maintained by the personal representative of a viable unborn child for the wrongful death of such child” [Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971) ] and, yet, not recognize the death of such child in the context of criminal prosecution. That inconsistency *359was discussed in the Cass and Home cases.1
The common law “must be forever on progress; and no limits can be assigned to its principles or improvements.”2 I would hold that this Court could properly determine that an individual could be prosecuted for the killing of a viable unborn child.
. Compare Summerfield v. Superior Court, Maricopa County, 144 Ariz. 467, 698 P.2d 712 (1985), and Werling v. Sandy, 17 Ohio St.3d 45, 476 N.E.2d 1053 (1985). Although Summerfield and Werling distinguish civil from criminal cases, both hold that recovery may be sought where a "viable fetus” is negligently injured and subsequently stillborn.
. In truth, the common law, as a science, must be forever in progress; and no limits can be assigned to its principles or improvements. In this respect it resembles the natural sciences, where new discoveries continually lead the way to new, and sometimes to astonishing, results. To say, therefore, that the common law is never learned, is almost to utter a truism. It is no more than a declaration, that the human mind cannot compass all human transactions. It is its true glory, that it is flexible, and constantly expanding with the exigencies of society; that it daily presents new motives for new and loftier efforts; that it holds out forever an unapproached degree of excellence; that it moves onward in the path towards perfection, but never arrives at the ultimate point.
Story, Joseph, The Miscellaneous Writings of Joseph Story, edited by William W. Story (Boston; Charles C. Little and James Brown 1852), p. 526.