(dissenting). Because the fetus in this case was stillborn and resuscitative efforts were unsuccessful, defendant Selwa cannot be prosecuted under the statute prohibiting negligent operation of a vehicle causing homicide. Accordingly, I dissent.
i
A
The statute prohibiting negligent operation of a vehicle causing homicide, MCL 750.324; MSA 28.556, provides:
Any person who, by the operation of any vehicle upon any highway or upon any other property, public or private, at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $2,000.00, or by both such fine and imprisonment.
*471The Legislature has not defined the term "person” within the context of this statute, but the Penal Code defines the term generally to include,
unless a contrary intention appears, public and private corporations, copartnerships, and unincorporated or voluntary associations. [MCL 750.10; MSA 28.200.]
In the absence of any further pronouncement from the Legislature regarding what connotes a "person” under the negligent homicide statute, we must look to the common-law definition of that term. Accord People v General Dynamics Land Systems, Inc, 175 Mich App 701, 702-703; 438 NW2d 359 (1989). Indeed, "[i]n construing a statute wherein a public offense has been declared in the general terms of the common law, without more particular definition, the courts generally refer to the common law for the particular acts constituting the offense.” People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936).
In People v Guthrie, 97 Mich App 226, 229; 293 NW2d 775 (1980), this Court held that an unborn viable fetus is not a "person” for purposes of the negligent homicide statute because under the common law "there could be no homicide without a living human being the victim.” To be a "person” within the protection of the statute, it is necessary that a fetus be "born alive” and "exist independently of its mother’s body.” Id. See also anno: Proof of live birth in prosecution for killing newborn child, 65 ALR3d 413, §§ 2, 4 (citing cases). Recognizing the need to construe the "born alive” rule as it has developed under the common law, the Guthrie panel relied on a respected criminal *472law treatise as well as decisions from other jurisdictions.1 The Guthrie Court explained:
"In the United States the 'born alive’ requirement has come to mean that the fetus be fully brought forth and establish an 'independent circulation’ before it can be considered a human being. Proof of live birth and death by criminal agency are required beyond a reasonable doubt to sustain a homicide conviction. 'Independent circulation’ can be established by evidence of the fetus having breathed, but such proof usually is not conclusive in the absence of the evidence of life, such as crying.” [Guthrie, supra at 230, quoting LaFave & Scott, Criminal Law, § 67, pp 530-531.]
Thus, Guthrie and its common-law underpinnings guide us in our determination of whether the Mielke fetus was "born alive.”
B
The majority holds that the language in Guthrie requiring a showing of an "independent and separate existence” was dicta,2 and that this Court is constrained to interpret the "born alive” rule only through express legislative pronouncements. I disagree because the eifect of such a holding is to *473deny the judiciary’s role in development of the common law.
Const 1963, art 3, § 7 provides:
The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.
Our Supreme Court has construed this constitutional provision to mean that the common law and statutory law remain in force unless "changed” by the judiciary or "amended or repealed” by the Legislature. Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965). The common law is neither static nor immutable, but is adaptable to the constantly evolving condition and needs of society. Myers, supra; Semmens v Floyd Rice Ford, Inc, 1 Mich App 395, 399; 136 NW2d 704 (1965).
The Legislature has not seen fit to abrogate the "born alive” rule in the fifteen years since Guthrie and has not amended the negligent homicide statute to define the prerequisites of personhood. As a result of this legislative void, the majority chooses to analyze this issue by resort to the definition of "live birth” in the Public Health Code3 and the Determination of Death Act.4 I disagree, finding the former statute to be inapplicable to this criminal matter and the latter to be wholly unhelpful given that a person must be alive before the person can die.5 We need not be left twisting in the wind, however, as the majority presumes, merely *474because the Legislature has not declared with any specificity when a fetus is "born alive.” Quite to the contrary, where, as here, the Legislature declines to speak, it is the constitutional duty of the judiciary to apply extant common-law doctrine and, when the need arises, to modify the common law to reflect the posture of modern society.
ii
Turning to the facts of this case, I find that the prosecutor failed to prove the corpus delicti of negligent homicide inasmuch as the Mielke fetus was not "born alive,” as that phrase has developed under the common law.
A
The obstetrician who delivered Heide Mielke’s twenty-nine week fetus described it as "very floppy” with no muscle tone and no respiratory effort. In the delivery room, each of the fetus’ life signs — heart rate, respiratory effort, muscle tone, reflex irritability, and color — were measured at five-minute intervals and assigned an Apgar score of zero, one, or two. Thus, a perfect Apgar score would have been a total of ten. At one, five, and ten minutes after delivery, the fetus’ score was zero on all five measures. During this period, resuscitative efforts were made by hospital personnel, including intubation and, shortly thereafter, a tracheotomy, manual respiration with one hundred percent oxygen, a blood transfusion, and placement of an intravenous line into the fetus’ umbilical artery to provide antibiotics, other medi*475cations, and nutrients. Through these efforts, at the fifteen-minute marks, a heart beat of between zero and one hundred beats a minute was detected, resulting in a total Apgar score of one. At twenty minutes, the heart beat had increased to over one hundred beats a minute, resulting in a total Apgar score of two. At twenty-five minutes, the fetus made two or three spontaneous respirations. The fetus was then taken to the neonatal intensive care unit and placed on a mechanical respirator. Despite these resuscitative efforts, the stillborn fetus exhibited no muscle tone or reflex irritability, no effective circulation, severe cyanosis, excessive blood acidity, and a low blood count. The fetus’ heartbeat eventually disappeared and the respirator was disengaged. The death certificate indicated that death occurred 2Vz hours after delivery.
Neonatologist DeWitte testified that the fetus could have been considered stillborn for the first fifteen minutes after delivery because no signs of life were present. On cross-examination, Dr. De-Witte testified:
Q. Doctor, what does the terminology stillborn birth mean? What does that mean, sir?
A. That means that the birth of an infant with no signs of life.
Q. Okay. Doctor, can you tell the Court based on your experience whether or not you have encountered situations where perhaps there was a stillborn birth, and through mechanical or physician assistance life signs were able to be brought into the infant child?
A. Yes.
Q. Has that occurred in your experiences?
A. Yes.
Q. Okay. So, that I understand, and more importantly the Court, there could be a stillborn birth, *476and subsequent to that there could be signs of life; is that correct?
A. Yes.
Q. As I understand your testimony, correct me if I’m wrong, [the Mielke fetus’ Apgar scores of one and two points at fifteen and twenty minutes, respectively, were] based upon the assistance of the physicians who were in the delivery room; is that correct?
A. Yes. A number of measures were being carried out at that time.
Q. Would it be fair to say, doctor, that other than through the assistance of the respirator and other mechanical assistance, that [the fetus] did not independently sustain her life?
A. Yes.
On redirect examination, Dr. DeWitte opined that, when the gasping respirations were made at the twenty-five-minute mark, the fetus was alive. A certificate of live birth was issued because, according to hospital policy, "if they have a heart rate then we consider it a live birth.” No electroencephalograph (eeg) was performed to determine whether any brain activity was present, but the fact that this procedure was not done is not unusual under this type of circumstance.
B
The majority concludes that the Mielke fetus was born alive because the "evidence of spontaneous breathing and heartbeat coupled with an inference of brain activity could negate a finding of 'death’ as statutorily defined.” Ante, at 467-468. I disagree.
The stillborn fetus was never "alive” as that term is defined under the common law. The fetus’ *477weak heartbeat at the fifteen-minute mark and two or three spontaneous respirations at the twenty-five-minute mark were artificially induced and mechanically sustained. Despite these resuscitative efforts, Dr. DeWitte opined that the fetus never sustained an independent and separate existence from the mother. An independently sustained life is not exhibited by forcing air into a fetus’ lungs either manually or mechanically, or by a heartbeat that is detectable but so weak that it fails to circulate the blood. See People v Flores, 3 Cal App 4th 200, 203; 4 Cal Rptr 2d 120 (1992); State v Green, 245 Kan 398, 399-404; 781 P2d 678 (1989); Lane v Commonwealth, 219 Va 509; 248 SE2d 781 (1978).
To base a criminal prosecution on facts such as these — a stillborn fetus who takes two or three spontaneous respirations following twenty-five minutes of herculean resuscitative efforts, and whose brain activity must be inferred — is untenable, raising serious procedural due process questions. Guthrie, supra at 232. See also Keeler v Superior Court of Amador Co, 2 Cal 3d 619, 633-634; 470 P2d 617 (1970); State v Trudell, 243 Kan 29, 35-37; 755 P2d 511 (1988). To the extent that the common-law definition of "person” in the context of the negligent homicide statute is ambiguous, this Court must draw that ambiguity in favor of defendant. People v Dempster, 396 Mich 700, 715; 242 NW2d 381 (1976). The majority, however, has done the opposite.
The evidence presented at the preliminary examination was insufficient as a matter of law to prove the corpus delicti of negligent operation of a vehicle causing homicide. Accordingly, I would affirm the circuit court’s decision to quash the information because the Mielke fetus was not born alive and hence no crime was committed.
See Local 1064, RWDSU AFL-CIO v Ernst & Young, 449 Mich 322, 332; 535 NW2d 187 (1995), where our Supreme Court stated:
In the absence of a published opinion in this state, it is entirely appropriate and indeed necessary to look to the common law as represented by other states’ decisions, hornbooks, treatises, and journals to discern the scope of [the common law].
The majority contradicts itself when it states that the Guthrie panel’s "independent and separate existence” language was dicta, because, as correctly noted by the majority in its footnote 1, ante at 458, both parties consider Guthrie and its reiteration of the “born alive” rule to be controlling.
MCL 333.2804(3); MSA 14.15(2804X3), incorporating 1981 AACS, R 325.3201(l)(d).
MCL 333.1033; MSA 14.15(1033).
The majority declares that "it is axiomatic that one who is not dead is alive and vice versa.” Ante at 461. While this statement may be relevant to the vast majority of questions regarding life and death, it is inapposite to this case. Although there is no dispute that the Mielke fetus was alive in útero before impact, our focus under the *474born alive rule is on the moments immediately following birth. To this end, the relevant axiom is: A "person” must be alive before the person can die. The majority’s use of the Determination of Death Act places the proverbial cart before the horse.