Wingate, J.c.c., Temporarily Assigned.
This matter is now before this court upon motion by defendant for a judgment of acquittal at the conclusion of the case. While the motion is addressed to the indictment generally, it is more vigorously urged towards the first four counts which charge two murders and two murders while armed and in possession of a gun.
Although there has been some factual challenge to the State's case with respect to the identification of defendant as the alleged murderer (which was contested by defense introduction of alibi witnesses), nevertheless, the proofs are, at this stage,*fn1 clear and sufficient for a jury to find, beyond a reasonable doubt, that in fact the twin infants borne by a certain Nikki Spearman died, after being born alive, as a result of a gunshot wound received by the mother when she was seven or more months pregnant with the twin fetuses.
After the gunshot wound the mother was delivered of the twin fetuses by a Caesarian operation and each fetus lived separate and apart from the mother for a limited period of time. One, later named John Lee Spearman, died approximately some three hours after delivery. John Lee received
a bullet wound across his back as the missile passed through the mother. The cause of death was stated as a bullet wound and additional causes were attributed to immaturity. The other, later named Jonathan Lee Spearman, died approximately some 15 hours after delivery. He had not been struck by the bullet and death was attributed to immaturity. Obviously, the premature births were directly the result of the bullet wound which the mother received.
In support of the motion addressed to the four counts regarding the alleged murders, the defense advances the following arguments:
1. Assuming there was criminal conduct in the shooting by someone, such criminal conduct was directed against the mother and may not be imputed to the yet unborn viable fetuses.
2. Our common law excludes the killing of a fetus from a homicide.
3. If the fetuses had been "still born" there would have been no homicide, and thus the intervening action of a doctor who delivered the fetus alive should not be the controlling factor as to whether a homicide took place.
4. The act of homicide relates back to the moment of the infliction of the wound, or the time of the actual shooting, at which time neither John Lee Spearman nor Jonathan Lee Spearman were lives in existence entitled to the protection of the New Jersey law against murder.
These issues have never been formally resolved by any known decisions of the courts of the State of New Jersey. That is not to say, however, that our courts have not made reference to the common law principles that may apply to such issues.
Fetuses and unborn issue have been the subject matter of our courts and other jurisdictions, including the United States Supreme Court. These considerations have arisen in many different issues. They include those of the rights of unborn issue to inherit after birth; rights of ...