California is studying whether their fetus murder law requires that the killer know the woman was pregnant. Read the article. Do you think Texas law requires knowledge of the pregnancy?
That's a great question. In a related thought, does the defendant have to know that the child is under the age of 6 under 19.03(a)(8)? Or for Injury to a Child or Elderly person, does the defendant have to have actual knowledge of the age of the victim? Those are result-oriented offenses, aren't they?
The result that the defendant has to intend is the injury. There is no specific intent attached to the condition of the person (i.e., the person is elderly, disabled, under six, pregnant). For example, see Zubia v. State, 998 SW2d 226 (defendant intended to shoot adult but shot child; no requirement of proof of specific intent to shoot a child to obtain conviction for injury to a child).
Does transferred intent matter? If I intend to kick my wife in the stomach, and I cause her to miscarry and the child to die, am I not guilty just because the result is different? TPC 6.04(b).
[This message was edited by John Rolater on 01-09-04 at .]
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Is an unborn fetus "an individual under six years of age"? In my case the defendant got in a fight with his pregnant wife, which resulted in a miscarriage. My guess is his conduct might be characterized as "knowing" with respect to the wife, if not the fetus (though he had no intent to kill either). Taylor seems to have had an intent to kill one of the victims, but if you need not know about the presence of the other victim to be guilty of murdering him/her, then it seems to me logic maybe leads to my situation being a murder or even a capital murder. See Duren, 87 S.W.3d at 724; Darnes, 118 S.W.3d at 919; and Castillo, 71 S.W.3d at 815 fn. 2 (failing to apply "knowing" mental state in paragraph of charge applying 6.04(b) meant that "the trial court enhanced the burden of the State or restricted the jury's ability to convict for murder").
[This message was edited by Martin Peterson on 01-09-04 at .]
For another take on why the fetus has worth independent of the mother in the context of a murder or assault see The Point of Viability. Synopsis: "a fetus whose mother is going to stay pregnant is as "viable" against the mother's assailant as the truly viable fetus is against a woman who seeks a late term abortion".
Remember the woman in Utah who refused a C-section, resulting in the loss of one baby of a set of twins? Well, she just pled out to child endangerment:
Presiding Judge Keller deals quickly with any constitutional issues in this fetus murder case, but it was clear the defendant knew the victim was pregnant.
So, we still must wait for a case to answer the question raised at the beginning of this thread. No discussion of transferred intent. Unfortunately, a concurring opinion by Judge Johnson wanders off into an advisory role. Read that opinion.
