dissenting.
I must respectfully dissent from the majority opinion because the trial court was in error in dismissing the murder indictment when the only medical evidence indicated that the unborn child was alive.
The deposition of Dr. Nunemaker shows that he definitely considered the child to be alive. He was asked:
Q. In your medical opinion was this 28 to 30 week old fetus a viable living being?
A. Yes.
He repeated and explained his opinion but never changed it, nor deviated from it. Under aggressive cross-examination, the doctor said he called the seven-month-old infant a baby, and stated “it was a living person.”
The only fair inference that can be taken from the entire testimony by the physician is that it was his medical opinion that this was a viable fetus that would have lived assuming that the mother had a normal delivery even though the child would have been several weeks premature. There was absolutely no evidence produced before the trial judge to contradict Dr. Nunemaker’s testimony.
The trial court would impose the legal definition of a person as stated in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), upon the factual medical opinion as presented by the physician in this case. An extension of such reasoning could in effect permit judges to practice medicine. Personally, I believe that the opinion of a physician is more valuable. Given the choice, I would prefer being treated by a doctor rather than a judge.
Stripped of its rhetoric, this matter is simply a brutal murder committed on an innocent, defenseless victim. It is directly connected to a savage criminal assault on the mother and on the child.
There is no need to speculate as to when life begins. A baby human is biologically little different from a fish, frog or horse. For each life begins at the moment of conception. Here, the child was seven months along in development in the womb; clearly, his individual life had begun. The doctor testified that he was a living person. Even Roe v. Wade, supra, tacitly recognizes the viability of the child at 28 weeks.
Consequently it is not really necessary to enter an extended discussion on the legal, moral, theological, medical or philosophical questions in the pro-life/pro-abortion debate. This is a clear case of an unlawful killing of a human, living person as confirmed by the uncontradicted medical evidence in the record. The trial court erred. The Court of Appeals was correct. Accordingly, I must respectfully disagree with the majority of this Court.
It is hypertechnical judicial hairsplitting to abstractly theorize on the meaning of “person,” “human being” or “being born alive.” It is sematical sophistry of the worst order to deny the equal protection of the criminal law to an unborn living liuman being.
Those who would do so can find no real refuge in the United States Constitution because that sacred but living document also once was erroneously interpreted to refuse to recognize women and blacks as “legal persons.”
The Court of Appeals correctly decided that a viable fetus is a person within the meaning of the Kentucky homicide statute. The common law requirement of a live birth expressed in Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936) is not necessarily controlling in the absence of other statutory language. The definition of a person expressed in Mitchell v. Couch, Ky., 285 S.W.2d 901 (1955), more correctly indicates the true status of the law at the time the homicide statute was adopted. In that civil case, the Court held that a viable unborn child is a person because biologically speaking such a child is a presently existing person, a living human being.
Biologically speaking, human life begins at the moment of conception. 42 Am.Jur.2d, Infants § 2. Medical authority has long recognized that the child is in exist*67ence from the moment of conception. W. Prosser, Torts § 55 (4th ed., 1971).
An additional analysis of cases decided in regard to the civil law indicates that for matters related to social security benefits the fact that a worker died before the birth of a child already in being is not a legal or equitable reason to prohibit the child from benefits. Medically speaking, the child was viable from the instant of conception onward. Wagner v. Finch, 413 F.2d 267 (5th Cir., 1969). The Supreme Court of Rhode Island has held that an unborn child is a person within the meaning of that state’s wrongful death action and damages could be awarded on behalf of the parents of a stillborn child. Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (R.I., 1976).
When the Kentucky Penal Code was enacted, common law crimes were abolished and a liberal construction of the Kentucky law was mandated.
The Kentucky Penal Code is based upon and frequently refers to the Model Penal Code. The Model Code indicates that for purposes of homicide, a human being means a person who has been born alive. A.L.I. Model Penal Code, 1962. It is fair to say that this definition was considered by the drafters of the Kentucky code but was not adopted. Consequently I conclude that the commentary reflects a legislative intent not to consider the concept of being born alive as previously followed to apply to the Kentucky code.
Crimes relating to the death of an unborn child do not necessarily fall within the exclusion of the abortion statutes. The Kentucky abortion laws were adopted in 1974 and are not part of the penal code which was enacted in 1971. The Kentucky abortion statutes relate to protection for the consenting mother and her doctor without regard to the penal code. The homicide statutes and the abortion statutes do not reflect exclusive punishment for criminal conduct resulting in the death of an unborn child. The legislature intended that either could apply depending on the facts. Prosecutors generally have the discretion to decide on a particular charge depending on the facts of a situation. These facts, if they involve a felony, must be presented to a grand jury. Here that was done and the grand jury decided that it was felony murder.
This is not a situation in which the specific controls the general. Here we have parallel laws regulating different kinds of individual human behavior. The choice of making the charge was clearly within the authority of the prosecutor.
The facts of this case do not fit within the abortion statute. The actions of the father did not actually produce the premature expulsion of the unborn child. The child was not expelled; it was surgically removed after being killed by its father. None of the other elements generally associated with abortion are present here. There was no consent by the pregnant woman, much less the written informed consent required by the law. Here no physician or hospital was involved, and the unborn child was not within the constitutionally court-created period of nonviability. If the defendant had shot the unborn child with a gun while it was still in the mother’s womb, it would hardly be thought of as an abortion. The only similarity between abortion and the facts of this case is that an unborn child was involved. We should not interpret the abortion statute as the exclusive punishment for this course of conduct. The legislature has provided punishment for somewhat similar conduct under one or more statutes. See, Commonwealth v. McKinney, Ky.App., 594 S.W.2d 884 (1979).
.If we are to follow the Michigan example in People v. Guthrie, Mich.App., 97 Mich.App. 226, 293 N.W.2d 775 (1980), then perhaps additional legislation is needed to clearly express the public policy of Kentucky in this type of incident. The Michigan court acknowledged the advances in medical science and recognized that the bom-alive rule is outmoded, archaic and no longer served a useful purpose. However, it refused to extend the civil law definition of person to criminal law. That may be one of the reasons why the public in general has *68a jaundiced view of the technical distinctions indulged in by the courts.
It is my belief that Kentucky does not necessarily have to go to such lengths. The legislature indicated that the provisions of the penal code should be liberally construed. Their purpose was to repudiate the common-law principle of a strict construction of the penal laws. The Mitchell v. Couch, supra, case was decided almost twenty years before the adoption of the penal code. It has been followed in City of Louisville v. Stuckenborg, Ky., 438 S.W.2d 94 (1968); Orange v. State Farm Mutual Automobile Ins. Co., Ky., 443 S.W.2d 650 (1969), and Rice v. Rizk, Ky., 453 S.W.2d 732 (1970). The existence of life in an unborn child at this stage of development is a fundamental truth that does not require sophisticated or hypertechnical interpretation. The legislators, as well as the general public, should have reasonable acquaintance with the civil laws of Kentucky. It is a frequent presumption that the legislature is aware of the law at the time it enacts any other law. Therefore it is reasonable to believe that the Kentucky legislature intended the concept of personhood be extended to the criminal law. It is easy to argue that civil cases have no technical application to criminal statutes. However we believe that the legislative intent has been sufficiently manifested in Kentucky to include a fabric of the law that is uniform and whole and not unduly fragmented.
The interpretation of the word “person” in the Kentucky homicide statute by the Court of Appeals is not constitutionally prohibited under the ex post facto concept. The interpretation clarified the existing law of this Commonwealth. I believe the words “person” and “human being” as applied to homicide can be easily harmonized. Certainly at the very least, our legal system should try to keep up with the advances we have made in medical technology. In applying the ex post facto doctrine, it is necessary to carefully examine the conduct of the defendant in relation to the charges against him. Here his brutal conduct is obvious.
The construction of KRS 507.020 that includes an unborn child as a person or human being who can be the victim of a homicide does not make the statute unconstitutionally void for vagueness. It does not fail to give adequate notice or to promote adequate standards. Criminal responsibility does not attach where one could not reasonably understand that his contemplated conduct is unlawful. In determining the sufficiency of such notice, a statute must be examined in the light of the conduct of the defendant. Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). In this case there is little doubt that the father realized he was taking the life of his unborn child, against the laws of this state.
I do not believe that the factual pattern presented by this case is too difficult for a jury to comprehend. The question of viability can easily be left to the trier of fact on the basis of the evidence presented. It is done so routinely in the courts of Kentucky now in civil cases. Applying the same concept of viability to the homicide statutes presents no new difficulty. Such a position is not new to the field of homicide law generally. See, California Penal Code § 187 (1971); Michigan Comp. Laws Ann. § 750.322 (1968); Pa.Stat.Ann., Title 35 § 6605(d), Purdon (1977).
This Commonwealth does have a legitimate interest in the protection of human life, which requires treatment of a viable fetus as a person. Whether a criminal defendant intended to cause the death of the unborn child or injury or death to the mother is a factual question.
The circuit court was in error in dismissing the murder indictment because the only medical evidence indicates that the baby was a living person. This matter was clearly a jury question. The decision of the Court of Appeals should be affirmed.
STEPHENS, C.J., joins in this dissent.