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State v. Deborah J.Z.5/26/1999
ius, we relied upon § 939.22(16), Stats., to reach our Conclusion and therefore did not apply the "born alive" rule in that case. See Cornelius, 152 Wis.2d at 280, 448 N.W.2d at 437 (" ad the legislature not defined `human being' in sec. 939.22(16), we would have applied the `born alive' rule to fill that void."). Likewise in the present case, we arrive at our Conclusion using purely statutory grounds; therefore, an extensive Discussion of the common-law "born alive" rule is not necessary.
Simply put, to be convicted of attempted first-degree intentional homicide and first-degree reckless injury, Deborah must attempt to kill or injure someone who has been born alive. This is not what Deborah was charged with doing. The decision whether to include an unborn child in the definition of a "human being" is a policy issue best addressed by our legislature. We read § 939.22(16), Stats., to have definitively answered this question; the legislature clearly intended to exclude an unborn child by defining a "human being" as one who has been born alive.
CONCLUSION
We determine that an unborn child is not a "human being" because it is not one who has been born alive as required in § 939.22(16), Stats., and probable cause did not exist to charge Deborah with the crimes of attempted first-degree intentional homicide and first-degree reckless injury. As a result, we reverse the circuit court's denial of the motion to dismiss the information.
By the Court. -- Order reversed.
Recommended for publication in the official reports.
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