dissenting.
While conceding that the decisions of the Oklahoma Supreme Court are not binding upon this Court, I feel that the opinion of Justice Lavender in Evans v. Olson, 550 P.2d 924 (Okl.Cr.1976), interpreting the word “person” to include a viable unborn child, should be adopted for purposes of our criminal statutes. I would first note that the majority has mischaracterized the holding in Evans as one applying to a common law negligence action. That notion is in direct conflict with the language and holding of that case. In Evans, Justice Lavender held that a “person” would include a viable unborn child for purposes of 12 O.S.1971, § 1053, the wrongful death statute in force at that time. He specifically wrote “The right of action known as wrongful death accrues solely by virtue of statute.” Evans, supra, at 927. Thus, we are not dealing with a distiction between common law causes of action and statutory causes of action; we are dealing with two statutory causes, one civil and the other criminal. The question for purposes of this appeal is whether the word “person” has the same meaning in each context. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). It is precisely that duty which this Court must exercise in this case.
I believe that the word “person” does include viable unborn children for purposes of our criminal statutes. As the majority has noted, our statutes do not give direct guidance on this question. I agree that “[t]here is no mention that the definition of a ‘person’ should include a fetus.” Majority opinion at p. 827. Likewise, however, there is no indication that a fetus was meant to be excluded. This case is not analogous to State v. Humphrey, which is cited by the majority. In that case, we held that “carrying” a firearm meant physically carrying a gun, as opposed to having it in such proximity as to be easily accessible for immediate use. By including viable unborn children within the definition of *829“person”, we would not be moving beyond the express language of a statute. We would merely be including viable human life within the express language contained in the statute. This is not enlargment by implication or extension by inference, but application of the law to an act which is within both the letter and the spirit of the prohibiting statute. Ex Parte Barnett, 96 Okl.Cr. 254, 252 P.2d 496, 501 (1953).
I also believe that no due process problems arise from inclusion of viable unborn children within the meaning of “person.” A person of ordinary intelligence can surely understand that an assault committed against a viable person inside the womb is no less criminal than an assault committed against a viable person outside the womb. To hold otherwise appears to defy common intelligence, and seems to require speculation instead of avoiding it.
Finally, I cannot join in the majority’s finding of legislative intent to exclude unborn viable children from the definition of “person.” The definition of “person” found in 22 O.S.1981, § 4 is inclusive rather than exclusive. The different treatment of an “unborn quick child” in our homicide statutes does not preclude use of an inclusive definition. Indeed, the fact that killing an “unborn quick child” is manslaughter tends to support its inclusion within the definition of “person”, since proof of the corpus delicti is essential to any homicide prosecution, regardless of the degree. That is, “No person can be convicted of murder or manslaughter, or of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused are each established as independent facts beyond a reasonable doubt.” 21 O.S.1981, § 693. (Emphasis added.)