*825Opinion

ASHBY, Acting P. J.

Introduction

Defendant Soon Ja Du was convicted of voluntary manslaughter in the killing of Latasha Harlins, a customer in defendant’s store. Defendant was sentenced to 10 years in state prison. The sentence was suspended and defendant was placed on probation under certain terms and conditions. Petitioner (District Attorney) contends the court abused its discretion in granting probation and seeks a writ of mandate directing the court to “impose a legal sentence of an appropriate term in state prison.”1

In an indirect way, the District Attorney has correctly framed the single issue in this case: was the sentence imposed by the respondent court “legal,” that is, was it in accordance with statutorily defined sentencing guidelines.

A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. Utilizing this standard of review, we conclude that the respondent court’s determination was not an abuse of discretion. Accordingly, we deny the petition.

Facts2

The crime giving rise to defendant’s conviction occurred on the morning of March 16, 1991, at the Empire Liquor Market, one of two liquor stores owned and operated by defendant and her family. Although Empire Liquor was normally staffed by defendant’s husband and son while defendant worked at the family’s other store in Saugus, defendant worked at Empire on the morning of March 16 so that her son, who had been threatened by local *826gang members,3 could work at the Saugus store instead. Defendant’s husband, Billy Du, was present at the Empire Liquor Market that morning, but at defendant’s urging he went outside to sleep in the family van because he had worked late the night before.

Defendant was waiting on two customers at the counter when the victim, 15-year-old Latasha Harlins, entered the store. Latasha proceeded to the section where the juice was kept, selected a bottle of orange juice, put it in her backpack, and proceeded toward the counter.

Defendant had observed many shoplifters in the store,4 and it was her experience that people who were shoplifting would take the merchandise, “place it inside the bra or anyplace where the owner would not notice,” and then approach the counter, buy some small items and leave. Defendant saw Latasha enter the store, take a bottle of orange juice from the refrigerator, place it in her backpack and proceed to the counter. Although the orange juice was in the backpack, it was partially visible. Defendant testified that she was suspicious because she expected if the victim were going to pay for the orange juice, she would have had it in her hand.

Thirteen-year-old Lakeshia Combs and her brother, nine-year-old Ismail Ali, testified that Latasha approached the counter with money (“about two or three dollars”) in her hand. According to these witnesses, defendant confronted Latasha, called her a “bitch” and accused her of trying to steal the orange juice; Latasha stated she intended to pay for it. According to defendant, she asked Latasha to pay for the orange juice and Latasha replied, “What orange juice?” Defendant concluded that Latasha was trying to steal the juice.5

Defendant began pulling on Latasha’s sweater in an attempt to retrieve the orange juice from the backpack. Latasha resisted and the two struggled. Latasha hit defendant in the eye with her fist twice. With the second blow, *827defendant fell to the floor behind the counter, taking the backpack with her. During the scuffle, the orange juice fell out of the backpack and onto the floor in front of the counter. Defendant testified that she thought if she were hit one more time, she would die. Defendant also testified that Latasha threatened to kill her. Defendant picked up a stool from behind the counter and threw it at Latasha, but it did not hit her.

After throwing the stool, defendant reached under the counter, pulled out a bolstered .38-caliber revolver, and, with some difficulty, removed the gun from the holster. As defendant was removing the gun from the holster, Latasha picked up the orange juice and put it back on the counter, but defendant knocked it away. As Latasha turned to leave defendant shot her in the back of the head from a distance of approximately three feet, killing her instantly. Latasha had $2 in her hand when she died.

Defendant’s husband entered the store upon hearing defendant’s calls for help and saw Latasha lying on the floor. Defendant leaned over the counter and asked, “Where is that girl who hit me?” Defendant then passed out behind the counter. Defendant’s husband attempted to revive her and also dialed 911 and reported a holdup. Defendant, still unconscious, was transported to the hospital by ambulance, where she was treated for facial bruises and evaluated for possible neurological damage.

At defendant’s trial, she testified that she had never held a gun before, did not know how it worked, did not remember firing the gun and did not intend to kill Latasha.

Defendant’s husband testified that he had purchased the .38-caliber handgun from a friend in 1981 for self-protection. He had never fired the gun, however, and had never taught defendant how to use it. In 1988, the gun was stolen during a robbery of the family’s store in Saugus. Defendant’s husband took the gun to the Empire store after he got it back from the police in 1990.

David Butler, a Los Angeles Police Department ballistics expert, testified extensively about the gun, a Smith & Wesson .38-caliber revolver with a two-inch barrel. In summary, he testified that the gun had been altered crudely and that the trigger pull necessary to fire the gun had been drastically reduced. Also, both the locking mechanism of the hammer and the main spring tension screw of the gun had been altered so that the hammer could be released without putting much pressure on the trigger. In addition, the safety mechanism did not function properly.

After conclusion of the testimony at trial, the court granted a defense motion to dismiss the charge of first degree murder. The jury was instructed *828on second degree murder, two theories of voluntary manslaughter (sudden quarrel or heat of passion [CALJIC Nos. 8.42, 8.43 and 8.44] and honest but unreasonable belief in self-defense [CALJIC No. 5.17]), and involuntary manslaughter.

The jury found defendant guilty of voluntary manslaughter and also found true special allegations that defendant personally used a firearm, within the meaning of Penal Code sections 1203.06, subdivision (a)(1) and 12022.5. By convicting defendant of voluntary manslaughter, the jury impliedly found that defendant had the intent to kill and that the killing was unlawful, i.e., that it was neither justifiable nor excusable. (CALJIC No. 8.40.) Thus, the jury rejected the defenses that the killing was unintentional and that defendant killed in self-defense.

Probation Report

After defendant’s conviction, the case was evaluated by a Los Angeles County Probation officer, who prepared a presentence probation report. That report reveals the following about defendant:

At the time the report was prepared, defendant was a 51-year-old Korean-born naturalized American citizen, having arrived in the United States in 1976. For the first 10 years of their residence in the United States, defendant worked in a garment factory and her husband worked as a repairman. Eventually, the couple saved enough to purchase their first liquor store in San Fernando. They sold this store and purchased the one in Saugus. In 1989, they purchased the Empire Liquor Market, despite being warned by friends that it was in a “bad area.”

These warnings proved prophetic, as the store was plagued with problems from the beginning. The area surrounding the store was frequented by narcotics dealers and gang members, specifically the Main Street Crips. Defendant’s son, Joseph Du, described the situation as “having to conduct business in a war zone.” In December 1990, defendant’s son was robbed while working at the store and he incurred the wrath of local gang members when he agreed to testify against one of their number who he believed had committed the robbery.6 Soon thereafter, the family closed the store for two weeks while defendant’s husband formulated a plan (which he later realized *829was “naive”) to meet with gang members and achieve a form of truce. The store had only recently been reopened when the incident giving rise to this case occurred.

The probation officer concluded “it is true that this defendant would be most unlikely to repeat this or any other crime if she were allowed to remain free. She is not a person who would actively seek to harm another . . . .” However, she went on to state that although defendant expressed concern for the victim7 and her family, this remorse was centered largely on the effect of the incident on defendant and her own family.8 The respondent court found, however, that defendant’s “failure to verbalize her remorse to the Probation Department [was] much more likely a result of cultural and language barriers rather than an indication of a lack of true remorse.”

The respondent court sentenced defendant to ten years in state prison (six years for the base term and four for the. gun use). Sentence was suspended and defendant was placed on probation for a period of five years with the usual terms and conditions and on the condition that she pay $500 to the restitution fund and reimburse Latasha’s family for any out-of-pocket medical expenses and expenses related to Latasha’s funeral. Defendant was also ordered to perform 400 hours of community service. The court did not impose any jail time as a condition of probation.

Discussion

By using a firearm in the commission of the crime, defendant was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(2), which prohibits a grant of probation in cases where a firearm *830is used “[ejxcept in unusual cases where the interests of justice would best be served if the person is granted probation.”9

In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 413.10 If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in California Rules of Court, rule 414.11

*831The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion. (People v. Cazares (1987) 190 Cal.App.3d 833, 837 [235 Cal.Rptr. 604], citing People v. Edwards (1976) 18 Cal.3d 796, 807 [135 Cal.Rptr. 411, 557 P.2d 995].) The standard is the same for review of an order granting probation. “Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.” (People v. Henderson (1964) 226 Cal.App.2d 160, 163 [37 Cal.Rptr. 883].) It is the duty of the trial court to exercise its discretion “unswayed by partisan interest, public clamor, or fear of criticism” (Cal. Code Jud. Conduct, canon 3A(1)), regardless of whether the decision may be unpopular or controversial.

Our function is to determine whether the respondent court’s order is arbitrary or capricious, or “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ ” (People v. Warner (1978) 20 Cal.3d 678, 683 [143 Cal.Rptr. 885, 574 P.2d 1237].) The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. (People v. Cazares, supra, 190 Cal.App.3d at p. 837.) In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65]; People v. Axtell (1981) 118 Cal.App.3d 246, 259 [173 Cal.Rptr. 360].)

*832We conclude, based on the record presented, that the court did not abuse its discretion in determining that the statutory conditions for probation were satisfied in this case.

1. Determination That This was an Unusual Case.

The respondent court stated three reasons why it found this to be an unusual case: “First, although the basis for the presumption against probation is technically present, that is, a gun was used, I find that it does not apply. The statute [Penal Code section 1203, subdivision (e)(2)] is aimed at criminals who arm themselves and go out and commit crimes. It is not aimed at shopkeepers who lawfully possess firearms for their own protection. Secondly, the defendant has no recent record, in fact, no record at all of committing similar crimes or crimes of violence. Third, I find that the defendant participated in the crime under circumstances of great provocation, coercion, and duress.”

The District Attorney construes the court’s first comment as an explicit finding by the court that Penal Code section 1203, subdivision (e)(2) did not apply in this case. To the contrary, the court specifically acknowledged the applicability of this section: “There is in this case, as counsel has stated quite correctly, a presumption against probation because a firearm was used, and as [the District Attorney] said, in order to overcome that presumption, the court must find this to be an unusual case as that term is defined by law.” The court then commenced to apply the criteria set forth in rule 413 of the California Rules of Court.

In determining whether or not a case is “unusual,” the court may consider “[a] fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case . . . .” (Cal. Rules of Court, rule 413(c)(l)(i).)12 This includes facts which may indicate that the circumstances of the case are substantially different from the circumstances typically present in other cases involving the same probation limitation. The court observed that the firearm use limitation typically involves “criminals who arm themselves and go out and commit crimes.” Here the circumstances are very different. Defendant was a shopkeeper who lawfully possessed a firearm for protection from ongoing crime involving gang members. There was no evidence that the defendant or her *833family kept the gun in the store because of any intention to act unlawfully. The fact that here the gun was used by a shopkeeper possessing it for a lawful use is sufficient distinction from the circumstances “typically present” in other gun use cases to justify the court’s finding that this was an “unusual case.” The court then properly applied the second part of rule 413(c)(l)(i), noting that the defendant had “no recent record, in fact, no record at all of committing similar crimes or crimes of violence.”

In determining that this was an “unusual case” which overcame the statutory presumption against probation, the court also found that “the defendant participated in the crime under circumstances of great provocation, coercion, and duress.” We assume the court was relying upon California Rules of Court, rule 413(c)(2), which allows the court to consider “[a] fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense . . . .” The District Attorney argues that the court improperly used this factor because the provocation in this case (i.e., the blows struck by Latasha) was successfully urged by defendant as a defense in the trial, as evidenced by the fact that the jury reduced the charge from second degree murder to voluntary manslaughter. In other words, defendant got her break from the jury.

This argument has no merit. The burden of proving second degree murder was on the District Attorney and he did not prove it to the satisfaction of the jury. Defendant was convicted of and sentenced for voluntary manslaughter. Provocation did not amount to a defense to voluntary manslaughter. Therefore, provocation can be considered under California Rules of Court, rule 413(c)(2)(i). If the District Attorney’s argument were correct, the District Attorney could routinely overcharge defendants and then argue that any facts which would tend to defeat the overcharging must be ignored in probation decisions.

2. Criteria Affecting Probation.

Having found that this was an “unusual case” within the meaning of California Rules of Court, rule 413, the court determined that defendant was eligible for probation. The court then granted probation to defendant after applying the criteria prescribed by California Rules of Court, rule 414, including the following: the manner in which the crime was carried out did not demonstrate criminal sophistication (rule 414(a)(8)), defendant would not be a danger to others if she were not imprisoned (rule 414(b)(8)), the crime was committed because of an unusual circumstance such as great *834provocation which is unlikely to recur (rule 414(a)(7)),13 and defendant had no prior criminal record (rule 414(b)(1)).14 There are other criteria under rule 414 which the court could consider although it did not explicitly so state on the record. These criteria weigh heavily in favor of defendant.15 It is evident from the record that the court did in fact conduct the “overall evaluation” intended by the Judicial Council when it adopted rule 414.16

The court commented at sentencing that it did not “believe that Mrs. Du would be here today if the gun that she grabbed for protection had not been altered.” The court elaborated: “This was a gun that had been stolen from the Du family and had been returned to them shortly before the shooting. The court has been presented with no evidence, and I do not believe that Mrs. Du knew that the gun had been altered in such a way as to . . . make it an automatic weapon with a hairpin trigger. Ordinarily a .38 revolver is one of the safest guns in the world. Ordinarily, a woman Mrs. Du’s size would have to decide consciously to pull the trigger and exert considerable strength to do so, but that was not true of the gun used to shoot Latasha Harlins. I have serious questions in my mind whether this crime would have been committed at all but for the altered gun.”

Seizing upon this language, the District Attorney contends that the respondent court based its decision to grant probation in part upon the belief that defendant did not intentionally shoot the victim. According to the District Attorney, this demonstrates a clear disregard of the jury’s verdict that the killing was intentional.

*835The record does not support the District Attorney’s interpretation of the court’s remarks. After making the statement relied on by the District Attorney, the court went on to say: “Did Mrs. Du react inappropriately to Latasha Harlins? Absolutely. . . .” Nowhere in the record does the court say that the killing was an accident or that it was not unlawful and intentional. The District Attorney cannot meet his burden by taking the court’s comments out of context and disregarding other language which does not support his position. A trial court’s judgment is presumed to be correct and to be based on legitimate sentencing objectives. Isolated or ambiguous remarks by the trial court do not overcome that presumption. The party attacking the judgment must clearly and affirmatively demonstrate that the trial court relied on improper considerations. (People v. Axtell, supra, 118 Cal.App.3d at p. 259.)

By finding defendant guilty of voluntary manslaughter instead of murder, the jury found that defendant killed without malice aforethought. (CALJIC No. 8.37.) The court interpreted the jury’s verdict to mean that the killing was unlawful and intentional, but was committed in the heat of passion.17 It is obvious that the point the court was making was that if there had been time for reflection the crime might not have occurred. In view of the fast-moving chain of events (the entire confrontation took only 35-40 seconds), even a few seconds could have been critical.18

3. General Sentencing Guidelines.

The court prefaced its remarks at the sentencing hearing by explaining that in imposing sentence it was required to consider (along with other applicable rules) the general sentencing guidelines set forth in California Rules of Court, rule 410.19 Applying those guidelines, the court concluded that defendant was not a danger to society (rule 410(a)) and that a state prison *836sentence was not necessary either to encourage defendant to lead a law-abiding life (rule 410(c)) or to isolate her in order to prevent her from committing other crimes (rule 410(e)). With respect to rule 410(g), achieving uniformity of sentencing, the court stated that such uniformity was impossible to achieve because each voluntary manslaughter case involves a uniquely different factual situation.

The District Attorney asserts that the court gave no consideration to other portions of California Rules of Court, rule 410 which would have impacted less favorably on defendant, and concludes that the court focused only on the defendant and not the crime. The District Attorney specifically contends that the court misapplied rules 410(b) (whether a state prison sentence was needed to punish defendant),20 410(d) (whether its sentence would deter others from criminal conduct by demonstrating its consequences), and 410(g) (uniformity of sentencing). On the latter point, the District Attorney points to statistics which show that even in voluntary manslaughter cases where probation is granted, the majority of defendants receive some jail time as a condition of probation.

We reject the District Attorney’s contention that the court misapplied California Rules of Court, rule 410. First, the court is presumed to have considered all relevant criteria enumerated in the rules unless the record affirmatively demonstrates otherwise. (Cal. Rules of Court, rule 409.)21 Second, rule 410 specifically acknowledges that an analysis of all the factors set forth in the rule may lead to inconsistent results, and that the court is entitled to consider which objectives are of primary importance in the particular case (fn. 9 ante). The court did so here.

Third, the District Attorney cannot demonstrate, merely by reciting statistics, that the court abused its discretion by not imposing jail time as a condition of defendant’s probation. “For example, if 97 percent of all defendants convicted of driving while under the influence of alcohol or drugs are not (or are) sentenced to jail, that does not establish an abuse of *837discretion regarding a particular appellant, regardless of whether he is part of the 97 percent or the 3 percent. Abuse of discretion must be demonstrated based on the facts of the particular case being reviewed, and not on a statistical label.” (People v. Preyer (1985) 164 Cal.App.3d 568, 574 [210 Cal.Rptr. 807].)

Furthermore, the Legislature has decreed that where a defendant is convicted of certain specified crimes,22 the court must, except in unusual cases, impose a jail term as a condition of probation. By not including voluntary manslaughter in those crimes, the Legislature afforded trial courts the discretion to grant probation without a mandatory jail sentence as a condition thereof. The respondent court’s decision not to impose jail time in this case was within the guidelines set by the Legislature.

Conclusion

The decision of the trial court must be within broadly defined guidelines. Those guidelines allow a sentencing court to grant probation in a manslaughter case, even where a firearm is used, and to forego imposing a jail term as a condition of probation. Such a decision may indeed be controversial. Nevertheless, the only issue to be resolved on appellate review is whether the trial court exercised its discretion in a manner which was “arbitrary, capricious, or beyond the bounds of reason.” We conclude, on the basis of the entire record, that the respondent court did not abuse its discretion.

Disposition

The petition for writ of mandate is denied.

Boren, J., concurred. Grignon, J., concurred in the result.

A petition for a rehearing was denied May 20, 1992, and the opinion was modified to read as printed above. Petitioner’s application for review by the Supreme Court was denied July 16, 1992.

*623Opinion

MOSK, J.

In this proceeding for writ of prohibition we are called upon to decide whether an unborn but viable fetus is a “human being” within the meaning of the California statute defining murder (Pen. Code, § 187). We conclude that the Legislature did not intend such a meaning, and that for us to construe the statute to the contrary and apply it to this petitioner would exceed our judicial power and deny petitioner due process of law.

The evidence received at the preliminary examination may be summarized as follows: Petitioner and Teresa Keeler obtained an interlocutory decree of divorce on September 27, 1968. They had been married for 16 years. Unknown to petitioner, Mrs. Keeler was then pregnant by one Ernest Vogt, whom she had met earlier that summer. She subsequently began living with Vogt in Stockton, but concealed the fact from petitioner. Petitioner was given custody of their two daughters, aged 12 and 13 years, and under the decree Mrs. Keeler had the right to take the girls on alternate weekends.

On February 23, 1969, Mrs. Keeler was driving on a narrow mountain road in Amador County after delivering the girls to their home. She met petitioner driving in the opposite direction; he blocked the road with his car, and she pulled over to the side. He walked to her vehicle and began speaking to her. He seemed calm, and she rolled down her window to hear him. He said, “I hear you’re pregnant. If you are you had better stay away from the girls and from here.” She did not reply, and he opened the car door; as she later testified, “He assisted me out of the car. . . . [I]t wasn’t roughly at this time.” Petitioner then looked at her abdomen and became “extremely upset.” He said, “You sure are. I’m going to stomp it out of you.” He pushed her against the car, shoved his knee into her abdomen, and struck her in the face with several blows. She fainted, and when she regained consciousness petitioner had departed.

Mrs. Keeler drove back to Stockton, and the police and medical assistance were summoned. She had suffered substantial facial injuries, as well as extensive bruising of the abdominal wall. A Caesarian section was performed and the fetus was examined in útero. Its head was found to be severely fractured, and it was delivered stillborn. The pathologist gave as his opinion that the cause of death was skull fracture with consequent cerebral hemorrhaging, that death would have been immediate, and that the injury could have been the result of force applied to the mother’s abdomen. There was no air in the fetus’ lungs, and the umbilical cord was intact.

*624Upon delivery the fetus weighed five pounds and was 18 inches in length. Both Mrs. Keeler and her obstetrician testified that fetal movements had been observed prior to February 23, 1969. The evidence was in conflict as to the estimated age of the fetus;1 the expert testimony on the point, however, concluded “with reasonable medical certainty” that the fetus had developed to the stage of viability, i.e., that in the event of premature birth on the date in question it would have had a 75 percent to 96 percent chance of survival.

An information was filed charging petitioner, in count I, with committing the crime of murder (Pen. Code, § 187) in that he did “unlawfully kill a human being, to wit Baby Girl Vogt, with malice aforethought.” In count II petitioner was charged with wilful infliction of traumatic injury upon his wife (Pen. Code, § 273d), and in count III, with assault on Mrs. Keeler by means of force likely to produce great bodily injury (Pen. Code, 5 245). His motion to set aside the information for lack of probable cause (Pen. Code, § 995) was denied, and he now seeks a writ of prohibition; as will appear, only the murder count is actually in issue. Pending our disposition of the matter, petitioner is free on bail.

I

Penal Code section 187 provides: “Murder is the unlawful killing of a human being, with malice aforethought.” The dispositive question is whether the fetus which petitioner is accused of killing was, on February 23, 1969, a “human being” within the meaning of the statute. If it was not, petitioner cannot be charged with its “murder” and prohibition will lie.

Section 187 was enacted as part of the Penal Code of 1872. Inasmuch as the provision has not been amended since that date, we must determine the intent of the Legislature at the time of its enactment. But section 187 was, in turn, taken verbatim from the first California statute defining murder, part of the Crimes and Punishments Act of 1850. (Stats. 1850, ch. 99, § 19, p. 231.)2 Penal Code section 5 (also enacted in 1872) *625declares: “The provisions of this code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” We begin, accordingly, by inquiring into the intent of the Legislature in 1850 when it first defined murder as the unlawful and malicious killing of a “human being.”

It will be presumed, of course, that in enacting a statute the Legislature was familiar with the relevant rules of the common law, and, when it couches its enactment in common law language, that its intent was to continue those rules in statutory form. (Baker v. Baker (1859) 13 Cal. 87, 95-96; Morris v. Oney (1963) 217 Cal.App.2d 864, 870 [32 Cal.Rptr. 88].) This is particularly appropriate in considering the work of the first session of our Legislature: its precedents were necessarily drawn from the common law, as modified in certain respects by the Constitution and by legislation of our sister states.* *3

We therefore undertake a brief review of the origins and development of the common law of abortional homicide. (For a more detailed treatment, see Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664—1968: A Case of Cessation of Constitutionality (1968) 14 N.Y.L.F. 411 [hereinafter cited as Means]; Stern, Abortion: Reform and the Law (1968) 59 J.Crim.L., C. & P.S. 84; Quay, Justifiable Abortion— Medical and Legal Foundations II (1961) 49 Geo.L.J. 395.) From that inquiry it appears that by the year 1850—the date with which we are concerned—an infant could not be the subject of homicide at common law unless it had been born alive.4 Perhaps the most influential statement of the “born alive” rule is that of Coke, in mid-17th century: “If a woman be quick with childe,5 and by a potion or otherwise killeth *626it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is delivered of a dead childe, this is a great misprision [i.e., misdemeanor], and no murder; but if the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.” (3 Coke, Institutes *50 (1648).) In short, “By Coke’s time, the common law regarded abortion as murder only if the foetus is (1) quickened, (2) bom alive, (3) lives for a brief interval, and (4) then dies.” (Means, at p. 420.) Whatever intrinsic defects there may have been in Coke’s work (see 3 Stephen, A History of the Criminal Law of England (1883) pp. 52-60), the common law accepted his views as authoritative. In the 18th century, for example, Coke’s requirement that an infant be bom alive in order to be the subject of homicide was reiterated and expanded by both Blackstone6 and Hale.7

Against this background, a series of infanticide prosecutions were brought in the English courts in mid-19th century. In each, a woman or her accomplice was charged with murdering a newborn child, and it was uniformly declared to be the law that a verdict of murder could not be returned unless it was proved the infant had been born alive. Thus in Rex v. Brain (1834) 6 Car. & P. 349, 350, 172 Eng.Reprint 1272, the court instructed the jury that “A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed; as many children are bom alive, and yet do not breathe for some time after their birth. But you must be satisfied that the child was wholly born into the world at the time it was killed, or you ought not to find the prisoner guilty of murder.” (Accord, Rex v. Boulton (1832) 5 Car. & P. 329, 172 Eng.Reprint 997; Rex v. Enoch (1833) 5 Car. & P. 539, 172 Eng.Reprint 1089; Rex v. Crutchley (1836) 7 Car. & P. 814, 173 Eng.Reprint 355; Rex v. Sellis (1836) 7 Car. &P. 850,173 Eng.Reprint *627370; Reg. v. Reeves (1839) 9 Car. & P. 25, 173 Eng.Reprint 724; Reg. v. Wright (1841) 9 Car. & P. 754, 173 Eng.Reprint 1039; Reg. v. Trilloe (1842) Car. & M. 650, 174 Eng.Reprint 674; see also cases collected in Atkinson, Life, Birth, and Livebirth (1904) 20 L.Q.Rev. 134, 139-145.)

Of these decisions, some pointed out that evidence of breathing is not conclusive because that function may begin before the infant is fully born (Boulton, Enoch, Sellis), while others observed that the infant can possess an “independent circulation”—one of the tests used to determine live birth—even though the umbilical cord may not yet be severed (Reeves, Trilloe). But all were in agreement that however live birth was to be proved, unless that event had occurred before the alleged criminal act there could be no conviction of homicide.

By the year 1850 this rule of the common law had long been accepted in the United States. As early as 1797 it was held that proof the child was born alive is necessary to support an indictment for murder (State v. McKee (Pa.) Addison 1), and the same rule was reiterated on the eve of the first session of our Legislature (State v. Cooper (1849) 22 N.J.L. 52). Although the precise issue in Cooper was whether an attempted abortion on a woman whose fetus had not yet “quickened” was a common law crime, the opinion begins by a recital of the common law rules on abortional homicide. In its argument the State took the position that attempted abortion was an offense against the person of the child, and the court replied that “the very point of inquiry is, whether that be at all an offense or not, and whether the child be in esse, so that any crime can be committed against its person. In regard to offences against the person of the child, a distinction is well settled between its condition before and after its birth. Thus, it is not murder to kill a child before it be born, even though it be killed in the very process of delivery.” (Id. at p. 54.) In support of this proposition, the court then set out in full each of the passages of Coke, Blackstone, and Hale quoted hereinabove. (Id. at pp. 54-55.)

While it was thus “well settled” in American case law that the killing of an unborn child was not homicide, a number of state legislatures in the first half of the 19th century undertook to modify the common law in this respect.8 The movement began when New York abandoned the common law of abortion in 1830. The revisers’ notes on that legislation recognized the existing rule,9 but nevertheless proposed a special feticide statute *628which, as enacted, provided that “The wilful killing of an unborn quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.” (N.Y. Rev. Stat. 1829, pt. IV, ch. 1, tit. 2, § 8, quoted in Means, at p. 443.) At the same time the New York Legislature enacted a companion section (§9) which, although punishing a violaton thereof as second degree manslaughter, was in essence an “abortion law” similar to those in force in most states today.10

In the years between 1830 and 1850 at least five other states followed New York and enacted, as companion provisions, (1) a statute declaring feticide to be a crime, punishable as manslaughter, and (2) a statute prohibiting abortion.* 11 In California, however, the pattern was not repeated. Much of the Crimes and Punishments Act of 1850 was based on existing New York statute law; but although a section proscribing abortion was included in the new Act (§ 45), the Legislature declined to adopt any provision defining and punishing a special crime of feticide.

We conclude that in declaring murder to be the unlawful and malicious killing of a “human being” the Legislature of 1850 intended that term to have the settled common law meaning of a person who had been born alive, and did not intend the act of feticide—as distinguished from abortion—to be an offense under the laws of California.

Nothing occurred between the years 1850 and 1872 to suggest that in adopting the new Penal Code on the latter date the Legislature entertained any different intent. The case law of our sister states, for example, remained consonant with the common law. In Abrams v. Foshee (Cole ed. 1856) 3 Iowa 274, 278, the court noted that Iowa’s feticide statute (Iowa Rev. Stat. 1843, § 10) had been repealed by the Iowa Code of 1851; it was contended *629that an unborn child is nevertheless “a human being, within the meaning of [Iowa Code] section 2508, which provides that whoever kills any human being, with malice aforethought, either express or implied, is guilty of murder.” The court observed that “notwithstanding the infant in ventre sa mere, is treated by the law for some purposes, as born, or as a human being, yet we are not aware that it has been so treated, so far as to make the act of its miscarriage murder, unless so declared by statute. . . . When the child is born, however, it becomes a human being, within the meaning of the law; and if it shall then die, by reason of any potions or bruises it received in the womb, it would be murder in those who administered or gave them, with a view of causing the miscarriage.” (Ibid.) Citing Blackstone, Coke, and other authorities, the court concluded that “an infant in ventre sa mere, is not a human being within the meaning of” the statute defining murder. (Id. at p. 279.)12

Any lingering doubt on this subject must be laid to rest by a consideration of the legislative history of the Penal Code of 1872. The Act establishing the California Code Commission (Stats. 1870, ch. 516, § 2, p. 774) required the commissioners to revise all statutes then in force, correct errors and omissions, and “recommend all such enactments as shall, in the judgment of the Commission, be necessary to supply the defects of and give completeness to the existing legislation of the State. . . .” In discharging this duty the statutory schemes of our sister states were carefully examined,13 and we must assume the commissioners had knowl*630edge of the feticide laws noted hereinabove.14 Yet the commissioners proposed no such law for California, and none has been adopted to this day.

That such an omission was not an oversight clearly appears, moreover, from the commissioners’ explanatory notes to Penal Code section 187. After quoting the definitions of murder given by Coke, Blackstone, and Hawkins, the commissioners conclude; “A child within its mother’s womb is not a ‘human being’ within the meaning of that term as used in defining murder. The rule is that it must be born.—Rex vs. Brain, 6 Car. & P., p. 349. That every part of it must have come from the mother before the killing of it will constitute a felonious homicide.—Rex vs. Brain, 6 Car. & P., p. 349; Rex vs. Crutchley, 7 Car. & P., p. 814; Rex vs. Sellis, 7 Car. & P., p. 850; Rex vs. Poulton, 5 Car. & P., p. 329; 2 Bishop’s Cr. Law, Secs. 541, 542.” (Code Commissioners’ Note, Pen. Code of Cal. (1st ed. 1872), p. 81.) The cited cases, of course, are among those we have discussed earlier as representing the settled common law rule that live birth is a prerequisite to a conviction of homicide.

When there is persuasive evidence of a legislative intent contrary to the views expressed in code commissioners’ notes, those views will not be followed in construing the statute. (See, e.g., People v. Valentine (1946) 28 Cal.2d 121, 138, 142-144 [169 P.2d 1] [contrary to commissioners’ note, Legislature omitted important limitation of prior statute in codifying manslaughter provision of Penal Code].) Here, however, the views of the commissioners are in full accord with the history of section 187; and as we have seen, the Legislature made no significant change in that statute when it was codified into the Penal Code. The rule is therefore applicable that “Reports of commissions which have proposed statutes that are subsequently adopted are entitled to substantial weight in construing the statutes. [Citations.] This is particularly true where the statute proposed by the commission is adopted by the Legislature without any change whatsoever and where the commission’s comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators’ votes were based in large measure upon the explanation of the commission proposing the bill.” (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250 [66 Cal.Rptr. 20, 437 P.2d 508].)15

*631It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute. (Walsh v. Department of Alcoholic Bev. Control (1963) 59 Cal.2d 757, 764-765 [31 Cal.Rptr. 297, 382 P.2d 337], and cases cited.) We hold that in adopting the definition of murder in Penal Code section 187 the Legislature intended to exclude from its reach the act of killing an unborn fetus.

II

The People urge, however, that the sciences of obstetrics and pediatrics have greatly progressed since 1872, to the point where with proper medical care a normally developed fetus prematurely born at 28 weeks or more has an excellent chance of survival, i.e., is “viable”; that the common law requirement of live birth to prove the fetus had become a “human being” who may be the victim of murder is no longer in accord with scientific fact, since an unborn but viable fetus is now fully capable of independent life; and that one who unlawfully and maliciously terminates such a life should therefore be liable to prosecution for murder under section 187. We may grant the premises of this argument; indeed, we neither deny nor denigrate the vast progress of medicine in the century since the enactment of the Penal Code. But we cannot join in the conclusion sought to be deduced: we cannot hold this petitioner to answer for murder by reason of his alleged act of killing an unborn—even though viable—fetus. To such a charge there are two insuperable obstacles, one “jurisdictional” and the other constitutional.

Penal Code section 6 declares in relevant part that “No act or omission” accomplished after the code has taken effect “is criminal or punishable, except as prescribed or authorized by this code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation. . . .” This section embodies a fundamental principle of our tripartite form of government, i.e., that subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch. (People v. Knowles (1950) 35 Cal.2d 175, 181 [217 P.2d 1]; Harbor Comrs. v. Excelsior Redwood Co. (1891) 88 Cal. 491, 493 [26 P. 375]; People v. Hess (1951) 104 Cal.App.2d 642, 685 [234 P.2d 65]; In re Finley (1905) 1 Cal.App. 198, 201 [81 P. 1041].) Stated differently, there are no common law crimes in California. (People v. Redmond (1966) 246 *632Cal.App.2d 852, 862 [55 Cal.Rptr. 195]; People v. Harris (1961) 191 Cal.App.2d 754, 758 [12 Cal.Rptr. 916]; In re Harder (1935) 9 Cal.App.2d 153, 155 [49 P.2d 304].) “In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned. [Citations.] In order that a public offense be committed, some statute, ordinance or regulation prior in time to the commission of the act, must denounce it; likewise with excuses or justifications— if no statutory excuse or justification apply as to the commission of the particular offense, neither the common law nor the so-called ‘unwritten law’ may legally supply it.” (People v. Whipple (1929) 100 Cal.App. 261, 262 [279 P. 1008].)

Settled rules of construction implement this principle. Although the Penal Code commands us to construe its provisions “according to the fair import of their terms, with a view to effect its objects and to promote justice” (Pen. Code, § 4), it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. (People v. Baker (1968) 69 Cal.2d 44, 50 [69 Cal.Rptr. 595, 442 P.2d 675].) Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. (De Mille v. American Fed. of Radio Artists (1947) 31 Cal.2d 139', 156 [187 P.2d 769, 175 A.L.R. 382].) Indeed, “Constructive crimes— crimes built up by courts with the aid of inference, implication, and strained interpretation-—-are repugnant to the spirit and letter of English and American criminal law.” (Ex parte McNulty (1888) 77 Cal. 164, 168 [19 P. 237].)

Applying these rules to the case at bar, we would undoubtedly act in excess of the judicial power if we were to adopt the People’s proposed construction of section 187. As we have shown, the Legislature has defined the crime of murder in California to apply only to the unlawful and malicious killing of one who has been bom alive. We recognize that the killing of an unborn but viable fetus may be deemed by some to be an offense of similar nature and gravity; but as Chief Justice Marshall warned long ago, “It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.” (United States v. Wiltberger (1820) 18 U.S. (5 Wheat.) 76, 96 [5 L.Ed. 37, 42].) Whether to thus extend liability for murder in California is a determination solely within the province of the Legisla*633ture.16 For a court to simply declare, by judicial fiat, that the time has now come to prosecute under section 187 one who kills an unborn but viable fetus would indeed be to rewrite the statute under the guise of construing it. Nor does a need to fill an asserted “gap” in the law between abortion and homicide—as will appear, no such gap in fact exists—justfy judicial legislation of this nature: to make it “a judicial function ‘to explore such new fields óf crime as they may appear from time to time’ is wholly foreign to the American concept of criminal justice” and “raises very serious questions concerning the principle of separation of powers.” (In re Davis (1966) 242 Cal.App.2d 645, 655-656 & fn. 12 [51 Cal.Rptr. 702].)

The second obstacle to the proposed judicial enlargement of section 187 is the guarantee of due process of law. Assuming arguendo that we have the power to adopt the new construction of this statute as the law of California, such a ruling, by constitutional command, could operate only prospectively, and thus could not in any event reach the conduct of petitioner on February 23, 1969.

The first essential of due process is fair warning of the act which is made punishable as a crime. “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.” (Connally v. General Constr. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) “No one *634may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618].) The law of California is in full accord. (In re Newbern, supra, 53 Cal.2d 786, 792; In re Davis, supra, 242 Cal.App.2d 645, 650-651.)

This requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 16). When a new penal statute is applied retrospectively to make punishable an act which was not criminal at the time it was performed, the defendant has been given no advance notice consistent with due process. And precisely the same effect occurs when such an act is made punishable under a preexisting statute but by means of an unforeseeable judicial enlargement thereof. (Bouie v. City of Columbia (1964) 378 U.S. 347 [12 L.Ed.2d 894, 84 S.Ct. 1697].)

In Bouie two Negroes took seats in the restaurant section of a South Carolina drugstore; no notices were posted restricting the area to whites only. When the defendants refused to leave upon demand, they were arrested and convicted of violating a criminal trespass statute which prohibited entry on the property of another “after notice” forbidding such conduct. Prior South Carolina decisions had emphasized the necessity of proving such notice to support a conviction under the statute. The South Carolina Supreme Court nevertheless affirmed the convictions, construing the statute to prohibit not only the act of entering after notice not to do so but also the wholly different act of remaining on the property after receiving notice to leave.

The United States Supreme Court reversed the convictions, holding that the South Carolina court’s ruling was “unforeseeable” and when an “unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” (378 U.S. at pp. 354-355 [12 L.Ed.2d at p. 900].) Analogizing to the prohibition against retrospective penal legislation, the high court reasoned “Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, .operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dali. 386, 390,1 L.Ed. 648, 650. If a state legislature is barred by the *635Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Gaboon, 283 U.S. 553, 565, 75 L.Ed. 1264, 1273, 51 S.Ct. 582. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. Id., at 61.” (Fn. omitted.) (Id. at pp. 353-354 [12 L.Ed.2d at pp. 899-900].)

The court remarked in conclusion that “Application of this rule is particularly compelling where, as here, the petitioners’ conduct cannot be deemed improper or immoral.” (Id. at p. 362 [12 L.Ed.2d at p. 905].) In the case at bar the conduct with which petitioner is charged is certainly “improper” and “immoral,” and it is not contended he was exercising a constitutionally favored right. But the matter is simply one of degree, and it cannot be denied that the guarantee of due process extends to violent as well as peaceful men. The issue remains, would the judicial enlargement of section 187 now proposed have been foreseeable to this petitioner?

It is true that section 187, on its face, is not as “narrow and precise” as the South Carolina statute involved in Bouie; on the other hand, neither is it as vague as the statutes struck down in Connally and Lanzetta.17 Rather, section 187 bears a plain, common sense meaning, well settled in the common law and fortified by its legislative history in California. In Bouie, moreover, the court stressed that a breach of the peace statute was also in force in South Carolina at the time of the events, and that the defendants were in fact arrested on that ground and prosecuted (but not convicted) for that offense. Here, too, there was another statute on the books which petitioner could well have believed he was violating: Penal Code section 274 defines the crime of abortion, in relevant part, as the act of “Every person who . . . uses or employs any instrument or any other means whatever, with intent thereby to procure the miscarriage” of any woman, and does not come within the exceptions provided by law. The gist of the crime is the performance, with the requisite intent, of any of the acts enumerated in the statute. (People v. Root (1966) 246 Cal.App.2d 600, 604 [55 Cal.Rptr. 89]; People v. Moore (1963) 213 Cal.App.2d 160, 167 [23 Cal.Rptr. 502].) It is therefore no defense to a *636charge of violating section 274 that the act was committed unusually late in the woman’s pregnancy or by a method not commonly employed for that purpose. The prohibition is against “any means which might be used to effect a miscarriage” (People v. Clapp (1944) 67 Cal.App.2d 197, 202 [153 P.2d 758]), and has been applied to instances of beating or other physical violence inflicted upon the person of the woman for this purpose.18 In the present case, it will be remembered, petitioner’s avowed goal was not primarily to kill the fetus while it was inside his wife’s body, but rather to “stomp it out of” her; although one presumably cannot be done without the other, petitioner’s choice of words is significant and strongly implies an “intent thereby to procure the miscarriage” of his wife in violation of section 274.

Turning to the case law, we find no reported decision of the California courts which should have given petitioner notice that the killing of an unborn but viable fetus was prohibited by section 187. Indeed, the contrary clearly appears from People v. Eldridge (1906) 3 Cal.App. 648, 649 [86 P. 832], in which the defendant challenged as uncertain an information which charged him with the murder of “a human being,” to wit, the infant child “born to the said Glover H. Eldridge and said Mabel Eldridge on or about said twentieth day of February, 1905.” It was urged that “such charge might include the killing before birth, and therefore it cannot be determined from the information whether murder or abortion was intended to be charged.” The Court of Appeal rejected the contention, observing that “The only reasonable construction which can be given to the language employed in the information is to say that it charges that a child born to the defendant was by him unlawfully killed and murdered. That it was born is clearly stated; that it could be killed after birth of necessity implies that it was born alive, and we think the charge of murder was set forth with the degree of certainty required.” (Italics added.)

Properly understood, the often cited case of People v. Chavez (1947) 77 Cal.App.2d 621 [176 P.2d 92], does not derogate from this rule. There the defendant was charged with the murder of her newborn child, and convicted of manslaughter. She testified that the baby dropped from her womb into the toilet bowl; that she picked it up two or three minutes later, and cut but did not tie the umbilical cord; that the baby was limp and made no cry; and that after 15 minutes she wrapped it in a newspaper and concealed it, where it was found dead the next day. The autopsy surgeon testified that the baby was a full-term, nine-month child, weighing six and one-half pounds and appearing normal in every respect; that the *637body had very little blood in it, indicating the child had bled to death through the untied umbilical cord; that such a process would have taken about an hour; and that in his opinion “the child was born alive, based on conditions he found and the fact that the lungs contained air and the blood was extravasated or pushed back into the tissues, indicating heart action.” (Id. at p. 623.)

On appeal, the defendant emphasized that a doctor called by the defense had suggested other tests which the autopsy surgeon could have performed to determine the matter of live birth; on this basis, it was contended that the question of whether the infant was born alive “rests entirely on pure speculation.” (Id. at p. 624.) The Court of Appeal found only an insignificant conflict in that regard (id. at p. 627), and focussed its attention instead on testimony of the autopsy surgeon admitting the possibility that the evidence of heart and lung action could have resulted from the child’s breathing “after presentation of the head but before the birth was completed” (id. at p. 624).

The court cited the mid-19th century English infanticide cases mentioned hereinabove, and noted that the decisions had not reached uniformity on whether breathing, heart action, severance of the umbilical cord, or some combination of these or other factors established the status of “human being” for the purposes of the law of homicide. (Id. at pp. 624-625.) The court then adverted to the state of modern medical knowledge, discussed the phenomenon of viability, and held that “a viable child in the process of being born is a human being within the meeting of the homicide statutes, whether or not the process has been fully completed. It should at least be considered a human being where it is a living baby and where in the natural course of events a birth which is already started would naturally be successfully completed.” (Italics added.) (Id. at p. 626.) Since the testimony of the autopsy surgeon left no doubt in that case that a live birth had at least begun, the court found “the evidence is sufficient here to support the implied finding of the jury that this child was born alive and became a human being within the meaning of the homicide statutes.” (Italics added.) (Id. at p. 627.)19

Chavez thus stands for the proposition—to which we adhere— that a viable fetus “in the process of being born” is a human being within the meaning of the homicide statutes. But it stands for no more; in particular it does not hold that a fetus, however viable, which is not “in the process of being born” is nevertheless a “human being” in the law of homicide. On the contrary, the opinion is replete with references to the *638common law requirement that the child be “born alive,” however that term as defined, and must accordingly be deemed to reaffirm that requirement as part of the law of California.20

The Chavez court relied in part on Scott v. McPheeters (1939) 33 Cal.App.2d 629 [92 P.2d 678, 93 P.2d 562], a decision holding that an unborn child is an “existing person,” within the meaning of Civil Code section 29, for the purpose of bringing a postnatal action for prenatal injuries. In People v. Belous, supra, 71 Cal.2d 954, however, a majority of this court distinguished such civil law rules on the ground they either “require a live birth or reflect the interest of the parents.” (Id. at p. 968 & fn. 12.) We need not repeat that analysis here; but two further bases of distinction deserve mention. First, Scott emphasized that the child’s right' of action for prenatal injuries was unknown to the common law and would not exist in California but for statutory authorization.21 By the same token, as we have seen, the fetus’ status as a “human being” within the definition of murder was unknown to the common law and exists only where special feticide statutes have been enacted. Secondly, the law’s protection of the property interests of an unborn child dates not from Scott but from a far earlier time: for example, in Blackstone’s day it was already well settled that “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then *639actually born.” (1 Blackstone, Commentaries *130 (1765).) Inasmuch as such rules coexisted for centuries with the common law requirement of live birth to support a conviction of homicide, they cannot reasonably be deemed to have given petitioner notice that the killing of an unborn but viable fetus would now be murder.

Finally, although a defendant is not bound to know the decisional law of other states, the United States Supreme Court in Bouie (378 U.S. at pp. 360-361 [12 L.Ed.2d at pp. 903-904]) referred to reported cases of jurisdictions other than South Carolina in concluding that the South Carolina Supreme Court’s construction of the statute “is no less inconsistent with the law of other States than it is with the prior case law of South Carolina and, of course, with the language of the statute itself.” Here, too, the cases decided in our sister states from Chavez to the present are unanimous in requiring proof that the child was born alive before a charge of homicide can be sustained. (Bennett v. State (Wyo. 1963) 377 P.2d 634, 635-637; People v. Ryan (1956) 91 I11.2d 467 [138 N.E.2d 516, 518-520]; People v. Hayner (1949) 300 N.Y. 171 [90 N.E.2d 23, 24]; Singleton v. State (1948) 33 Ala.App. 536 [35 So.2d 375, 378]; Montgomery v. State (1947) 202 Ga. 678 [44 S.E.2d 242, 243-244]; cf. Watson v. State (1955) 208 Md. 210 [117 A.2d 549, 552].) And the text writers of the same period are no less unanimous on the point. (Perkins on Criminal Law, supra, pp. 29-30; Clark & Marshall, Crimes (6th ed. 1958) § 10.00, pp. 534-536; 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957) § 189; 2 Burdick, Law of Crime (1946) § 445; 40 Am.Jur.2d, Homicide, §§ 9, 434; 40 C.J.S., Homicide, § 2b.)

We conclude that the judicial enlargement of section 187 now urged upon us by the People would not have been forseeable to this petitioner, and hence that its adoption at this time would deny him due process of law.

Let a peremptory writ of prohibition issue restraining respondent court from taking any further proceedings on Count I of the information, charging petitioner with the crime of murder.

McComb, J., Peters, J., Tobriner, J., and Peek, J.,* concurred.

BURKE, Acting C. J.

The majority hold that “Baby Girl” Vogt, who, according to medical testimony, had reached the 35th week of development, *640had a 96 percent chance of survival, and was “definitely” alive and viable at the time of her death, nevertheless was not a “human being” under California’s homicide statutes. In my view, in so holding, the majority ignore significant common law precedents, frustrate the express intent of the Legislature, and defy reason, logic and common sense.

Penal Code section 187 defines murder as “the unlawful killing of a human being, with malice aforethought.” Penal Code section 192 defines manslaughter as “the unlawful killing of a human being, without malice.” The majority pursue the meaning of the term “human being” down the ancient hallways of the common law, citing Coke, Blackstone and Hale to the effect that the slaying of a “quickened” (i.e. stirring in the womb) child constituted “a great misprision,” but not murder. Although, as discussed below, I strongly disagree with the premise that the words of our penal statutes must be construed as of 1648 or 1765, nevertheless, there is much common law precedent which would support the view that a viable fetus such as Baby Girl Vogt is a human being under those statutes.

The majority cast a passing glance at the common law concept of quickening, but fail to explain the significance of that concept: At common law, the quickened fetus was considered to be a human being, a second life separate and apart from its mother. As stated by Blackstone, in the passage immediately preceding that portion quoted in the majority opinion (fn. 6), “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” (Italics added; 1 Blackstone, Commentaries, p. 129; see Rex v. Anonymous (1811) 3 Campb. 73, 170 Eng.Reprint 1310, 1311-1312; State v. Cooper, 22 N.J.L. 52, 54-55.)

Modern scholars have confirmed this aspect of common law jurisprudence. As Means observes, “The common law itself prohibited abortion after quickening and hanging a pregnant felon after quickening, because the life of a second human being would thereby be taken, although it did not call the offense murder or manslaughter.” (Italics added; Means, The Law of New York Concerning Abortion and the Status of the Foetus, 1664-1968: A Case of Cessation of Constitutionality (1968) 14 N.Y.L.F. 411, 504.)

This reasoning explains why the killing of a quickened child was considered “a great misprision,” although the killing of an unquickened child was no crime at all at common law (Means, supra, at p. 420). Moreover, although the common law did not apply the labels of “murder” or “manslaughter” to the killing of a quickened fetus, it appears that at common law this “great misprision” was severely punished. As late as 1837, the wilful *641aborting of a woman quick with child was punishable by death in England. (Lord Landsdowne’s Act of 1828 (9 Geo. IV, c. 31; Lord Ellenborough’s Act of 1803 (43 Geo. Ill, c. 58) j1 see Means, supra, at p. 440, fn. 64.)

Thus, at common law, the killing of a quickened child was severely punished, since that child was considered to be a human being. The majority would have us assume that the Legislature in 1850 and 1872 simply overlooked this “great misprision” in codifying and classifying criminal offenses in California, or reduced that offense to the lesser offense of illegal abortion with its relatively lenient penalties (Pen. Code, § 274).2

In my view, we cannot assume that the Legislature intended a person such as defendant, charged with the malicious slaying of a fully viable child, to suffer only the mild penalties imposed upon common abortionists who, ordinarily, procure only the miscarriage of a nonviable fetus or embryo. (See Comment, Model Penal Code, § 207.11, p. 149 (Tent. Draft No. 9, 1959).) To do so would completely ignore the important common law distinction between the quickened and unquickened child.

Of course, I do not suggest that we should interpret the term “human being” in our homicide statutes in terms of the common law concept of quickening. At one time, that concept had a value in differentiating, as accurately as was then scientifically possible, between life and nonlife. The analogous concept of viability is clearly more satisfactory, for it has a well defined and medically determinable meaning denoting the ability of the fetus to live or survive apart from its mother.3

The majority opinion suggests that we are confined to common law concepts, and to the common law definition of murder or manslaughter. However, the Legislature, in Penal Code sections 187 and 192, has defined those offenses for us: homicide is the unlawful killing of a “human being.” Those words need not be frozen in place as of any particular time, but must be fairly and reasonably interpreted by this court to promote justice and to carry out the evident purposes of the Legislature in adopting a homicide statute. Thus, Penal Code section 4, which was enacted in 1872 along with sections 187 and 192, provides: “The rule of the common law, that penal statutes are to be strictly construed, has no application to this code. *642All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (Accord, In re Cregler, 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305]; People v. Valentine, 28 Cal.2d 121, 142 [169 P.2d 1]; In re Haines, 195 Cal. 605, 614, 621 [234 P. 883].)

As the majority opinion recognizes, “ ‘In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned.’ ” (Ante, p. 632, quoting from People v. Whipple, 100 Cal.App. 261, 262 [279 P. 1008].) Instead, we must construe penal statutes in accordance with the “fair import” of their terms, rather than restrict those statutes to common law principles. As stated in Katz v. Walkinshaw, 141 Cal. 116, 122-123 [70 P. 663, 74 P. 766], “The idea that the doctrine ... is a part of the common law adopted by our statute, and beyond the power of the court to change or modify, is founded upon a misconception of the extent to which the common law is adopted by such statutory provisions, and a failure to observe some of the rules and principles of the common law itself. . . . The true doctrine is, that the common law by its own principles adapts itself to varying conditions, and modifies its own rules so as to serve the ends of justice under the different circumstances, a principle adopted into our code by section 3510 of the Civil Code: ‘When the reason of a rule ceases, so should the rule itself.’ ”

Penal Code section 4, which abolishes the common law principle of the strict construction of penal statutes, embodies the doctrine of Katz v. Walkinshaw, supra, 141 Cal. 116, and permits this court fairly to construe the terms of those statutes to serve the ends of justice. Consequently, nothing should prevent this court from holding that Baby Girl Vogt was a human (“belonging or relating to man; characteristic of man”).4 being (“existence, as opp. to nonexistence; specif, life”)5 under California’s homicide statutes.

We commonly conceive of human existence as a spectrum stretching from birth to death. However, if this court properly might expand the definition of “human being” at one end of that spectrum, we may do so at the other end. Consider the following example: All would agree that “Shooting or otherwise damaging a corpse is not homicide . . . .” (Perkins, Criminal Law (2d ed. 1969) ch. 2, § 1, p. 31.) In other words, a corpse is not considered to be a “human being” and thus cannot be the subject of a “killing” as those terms are used in homicide statutes. However, it is readily apparent that our concepts of what constitutes a “corpse” *643have been and are being continually modified by advances in the field of medicine, including new techniques for life revival, restoration and resuscitation such as artificial respiration, open heart massage, transfusions, transplants and a variety of life-restoring stimulants, drugs and new surgical methods. Would this court ignore these developments and exonerate the killer of an apparently “drowned” child merely because that child would have been pronounced dead in 1648 or 1850? Obviously not. Whether a homicide occurred in that case would be determined by medical testimony regarding the capability of the child to have survived prior to the defendant’s act. And that is precisely the test which this court should adopt in the instant case.

The common law reluctance to characterize the killing of a quickened fetus as a homicide was based solely upon a presumption that the fetus would have been born dead. (People v. Chavez, supra, 77 Cal.App.2d 621, 626; Atknson, Life, Birth and Livebirth, 20 L.Q.Rev. 134.) This presumption seems to have persisted in this country at least as late as 1876. (See State v. Winthrop, 43 Iowa 519, 523.) Based upon the state of the medical art in the 17th, 18th and 19th centuries, that presumption may have been well-founded. However, as we approach the 21st century, it has become apparent that “This presumption is not only contrary to common experience and the ordinary course of nature, but it is contrary to the usual rule with respect to presumptions followed in this state.” (People v. Chavez, supra, at p. 626; see Civ. Code,.§ 3546 [formerly Code Civ. Proc., § 1963, subd. 28]; cf. Health & Saf. Code, § 25953, forbidding therapeutic abortion after the 20th week of pregnancy.)

There are no accurate statistics disclosing fetal death rates in “common law England,” although the foregoing presumption of death indicates a significantly high death experience. On the other hand, in California the fetal death rate6 in 1968 is estimated to be 12 deaths in 1,000, a ratio which would have given Baby Girl Vogt a 98.8 percent chance of survival. (Cal. Statistical Abstract (1969) Table E-3, p. 65.) If, as I have contended, the term “human being” in our homicide statutes is a fluid concept to be defined in accordance with present conditions, then there can be no question that the term should include the fully viable fetus.

The majority suggest that to do so would improperly create some new offense. However, the offense of murder is no new offense. Contrary to the majority opinion, the Legislature has not “defined the crime of murder in California to apply only to the unlawful and malicious killing of one who has been born alive.” {Ante, p. 632.) Instead, the Legislature simply used the broad term “human being” and directed the courts to construe *644that term according to its “fair import” with a view to effect the objects of the homicide statutes and promote justice. (Pen. Code, § 4.) What justice will be promoted, what objects effectuated, by construing “human being” as excluding Baby Girl Vogt and her unfortunate successors? Was defendant’s brutal act of stomping her to death any less an act of homicide than the murder of a newly born baby? No one doubts that the term “human being” would include the elderly or dying persons whose potential for life has nearly lapsed; their proximity to death is deemed immaterial. There is no sound reason for denying the viable fetus, with its unbounded potential for life, the same status.

The majority also suggest that such an interpretation of our homicide statutes would deny defendant “fair warning” that his act was punishable as a crime. (Ante, p. 634.) Aside from the absurdity of the underlying premise that defendant consulted Coke, Blackstone or Hale before kicking Baby Girl Vogt to death, it is clear that defendant had adequate notice that his act could constitute homicide. Due process only precludes prosecution under a new statute insufficiently explicit regarding the specific conduct proscribed, or under a preexisting statute “by means of an unforeseeable judicial enlargement thereof.” (Ante, p. 634.)

Our homicide statutes have been in effect in this state since 1850. The fact that the California courts have not been called upon to determine the precise question before us does not render “unforeseeable” a decision which determines that a viable fetus is a “human being” under those statutes. Can defendant really claim suprise that a 5-pound, 18-inch, 34-week-old, living, viable child is considered to be a human being?

The fact is that the foregoing construction of our homicide statutes easily could have been anticipated from strong dicta in People v. Chavez, supra, 77 Cal.App.2d 621, 625-626 (hg. den. by S.Ct.), wherein the court reviewed common law precedents but disapproved their requirement that the child be born alive and completely separated from its mother. The court in Chavez held that a viable child killed during, but prior to completion of, the birth process, was a human being under the homicide statutes. However, the court did not hold that partial birth was a prerequisite, for the court expressly set forth its holding “Without drawing a line of distinction applicable to all cases . . . .” (77 Cal.App.2d at p. 627.) In dicta, the court discussed the question when an unborn infant becomes a human being under the homicide statutes, as follows: “There is not much change in the child itself between a moment before and a moment after its expulsion from the body of its mother, and normally, while still *645dependent upon its mother, the child for some time before it is born, has not only the possibility but a strong probability of an ability to live an independent life. . . . While before birth or removal it is in a sense dependent upon its mother for life, there is another sense in which it has started an independent existence after it has reached a state of development where it is capable of living and where it will, in the normal course of nature and with ordinary care, continue to live and grow as a separate being. While it may not be possible to draw an exact line applicable to all cases, the rules of law should recognize and make some attempt to follow the natural and scientific facts to which they relate. . . . [I]t would be a mere fiction to hold that a child is not a human being because the process of birth has not been fully completed, when it has reached that state of viability when the destruction of the life of its mother would not end its existence and when, if separated from the mother naturally or by artificial means, it will live and grow in the normal manner.” (77 Cal. App.2d at pp. 625-626.)

Thus the Chavez case explodes the majority’s premise that a viability test for defining “human being” under our homicide statutes was unforeseeable; Chavez approved and advocated this interpretation 23 years ago. (See also Scott v. McPheeters, 33 Cal.App.2d 629, 635 [92 P.2d 678, 93 P.2d 562] [“Who may say that such a viable child is not in fact a human being in actual existence?”].) I would conclude that defendant had sufficient notice that the words “human being” could include a viable fetus. As stated in People v. Victor, 62 Cal.2d 280, 299 [42 Cal.Rptr. 199, 398 P.2d 391], “Admittedly the word [‘imminent’] is to some extent a relative one; but ‘the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.’ [Citation.]”

In summary, I have shown that at common law, the slaying of a quickened fetus was a “great misprision” and was severely punished, since that fetus was considered to be a human being. We should not presume that the Legislature ignored these common law developments and intended to punish the malicious killing of a viable fetus as the lesser offense of illegal abortion. Moreover, apart from the common law approach, our Legislature has expressly directed us to construe the homicide statutes in accordance with the fair import of their terms. There is no good reason why a fully viable fetus should not be considered a “human being” under those statutes. To so construe them would not create any new offense, and would not deny defendant fair warning or due process since the Chavez case anticipated that construction long ago.

*646The trial court’s denial of defendant’s motion to set aside the information was proper, and the peremptory writ of prohibition should be denied.

Sullivan, J., concurred.

The petition of the real party in interest for a rehearing was denied September 10, 1970. Burke, J., and Sullivan, J., were of the opinion that the petition should be granted.

OPINION OF THE COURT

Chief Judge Cooke.

These appeals involve a question of criminal responsibility in which defendants, charged with homicide, contend that their conduct did not cause death.

*346The term “death”, as used in this State’s statutes, may be construed to embrace a determination, made according to accepted medical standards, that a person has suffered an irreversible cessation of breathing and heartbeat or, when these functions are artificially maintained, an irreversible cessation of the functioning of the entire brain, including the brain stem. Therefore, a defendant will not necessarily be relieved of criminal liability for homicide by the removal of the victim’s vital organs after the victim has been declared dead according to brain-based criteria, notwithstanding that, at that time, the victim’s heartbeat and breathing were being continued by artificial means.

I

People v Eulo

On the evening of July 19, 1981, defendant and his girlfriend attended a volunteer firemen’s fair in Kings Park, Suffolk County. Not long after they arrived, the two began to argue, reportedly because defendant was jealous over one of her former suitors, whom they had seen at the fair. The argument continued through the evening; it became particularly heated as the two sat in defendant’s pick-up truck, parked in front of the home of the girlfriend’s parents. Around midnight, defendant shot her in the head with his unregistered handgun.

The victim was rushed by ambulance to the emergency room of St. John’s Hospital. A gunshot wound to the left temple causing extreme hemorrhaging was apparent. A tube was placed in her windpipe to enable artificial respiration and intravenous medication was applied to stabilize her blood pressure.

Shortly before 2:00 a.m., the victim was examined by a neurosurgeon, who undertook various tests to evaluate damage done to the brain. Painful stimuli were applied and yielded no reaction. Various reflexes were tested and, again, there was no response. A further test determined that the victim was incapable of spontaneously maintaining respiration. An electroencephalogram (EEC) resulted in “flat,” or “isoelectric”, readings indicating no activity in the part of the brain tested.

Over the next two days, the victim’s breathing was maintained solely by a mechanical respirator. Her heartbeat was sustained and regulated through medication. *347Faced with what was believed to be an imminent cessation of these two bodily functions notwithstanding the artificial maintenance, the victim’s parents consented to the use of certain of her organs for transplantation.

On the afternoon of July 23, a second neurosurgeon was called in to evaluate whether the victim’s brain continued to function in any manner. A repetition of all of the previously conducted tests led to the same diagnosis: the victim’s entire brain had irreversibly ceased to function. This diagnosis was reviewed and confirmed by the Deputy Medical Examiner for Suffolk County and another physician.

The victim was pronounced dead at 2:20 p.m. on July 23, although at that time she was still attached to a respirator and her heart was still beating. Her body was taken to a surgical room where her kidneys, spleen, and lymph nodes were removed. The mechanical respirator was then disconnected, and her breathing immediately stopped, followed shortly by a cessation of the heartbeat.

Defendant was indicted for second degree murder. After a jury trial, he was convicted of manslaughter. The Appellate Division unanimously affirmed the conviction, without opinion.

People v Bonilla

At approximately 10:30 p.m. on February 6,1979, a New York City police officer found a man lying faceup in a Brooklyn street with a bullet wound to the head. The officer transported the victim in his patrol car to the Brookdale Hospital, where he was placed in an intensive care unit. Shortly after arriving at the hospital, the victim became comatose and was unable to breathe spontaneously. He was placed on a respirator and medication was administered to maintain his blood pressure.

The next morning, the victim was examined by a neurologist. Due to the nature of the wound, routine tests were applied to determine the level, if any, of the victim’s brain functions. The doctor found no reflex reactions and no response to painful stimuli. The mechanical respirator was disconnected to test for spontaneous breathing. There was *348none, and the respirator was reapplied. An EEG indicated an absence of activity in the part of the brain tested. In the physician’s opinion, the bullet wound had caused the victim’s entire brain to cease functioning.

The following day, the tests were repeated and the same diagnosis was reached. The victim’s mother had been informed of her son’s condition and had consented to a transfer of his kidneys and spleen. Death was pronounced following the second battery of tests and, commencing at 9:25 p.m., the victim’s kidneys and spleen were removed for transplantation. The respirator was then disconnected, and the victim’s breathing and heartbeat stopped.

An investigation led to defendant’s arrest. While in police custody, defendant admitted to the shooting. He was indicted for second degree murder and criminal possession of a weapon. A jury convicted him of the weapons count and of first degree manslaughter. The conviction was affirmed by a divided Appellate Division.

II

Defendants’ principal point in each of these appeals is that the respective Trial Judges failed to adequately instruct the juries as to what constitutes a person’s death, the time at which criminal liability for a homicide would attach. It is claimed that in New York, the time of death has always been set by reference to the functioning of the heart and the lungs; that death does not occur until there has been an irreversible cessation of breathing and heartbeat.

There having been extensive testimony at both trials concerning each victim’s diagnosis as “brain dead,” defendants argue that, in the absence of clear instruction, the juries may have erroneously concluded that defendants would be guilty of homicide if their conduct was the legal cause of the victims’ “brain death” rather than the victims’ ultimate state of cardiorespiratory failure. In evaluating defendants’ contentions, it is first necessary to review: how death has traditionally been determined by the law; how the principle of “brain death” is now sought to be infused into our jurisprudence; and, whether, if at all, this court may recognize a principle of “brain death” without infringing upon a legislative power or prerogative.

*349(a)

A person’s passing from life has long been an event marked with a variety of legal consequences. A determination of death starts in motion the legal machinery governing the disposition of the deceased’s property (see, generally, EPTL arts 3,4, 5 and 6). It serves to terminate certain legal relationships, including marriage (see NY Jur, Domestic Relations, § 1), and business partnerships (see Partnership Law, § 62, subd 4). The period for initiation of legal actions brought against, by, or on behalf of the deceased is extended (see CPLR 210). And, in recent times, death marks the point at which certain of the deceased’s organs, intended to be donated upon death, may be transferred (see Public Health Law, § 4301, subd 1). In the immediate context, pertinent here, determination of a person’s “death” is relevant because our Penal Law defines homicide in terms of “conduct which causes the death of a person” (Penal Law, § 125.00 [emphasis added]).

Death has been conceptualized by the law as, simply, the absence of life: “Death is the opposite of life; it is the termination of life” (Evans v People, 49 NY 86, 90). But, while erecting death as a critical milepost in a person’s legal life, the law has had little occasion to consider the precise point at which a person ceases to live.1

When the question arises as to when death occurs, it has been deemed one of fact (see Matter of Di Bella, 279 App Div 689), in which the fact finder may be called upon to evaluate expert medical testimony (see id.; Matter of Bucci, 57 Misc 2d 1001; Matter of Rose, 201 Misc 470). This has usually been in the context of an attempt by parties to prove the relative survivorship of two or more people killed in a common disaster, when the order of death affected the *350distribution of the decedents’ estates.2 And, while many of the efforts by parties attempting to prove survivorship are based on circumstantial evidence as to the relative times of death (see Matter of Di Bella, supra [evidence that wife suffered from asthma and would suffocate in shorter time]; Matter ofBucci, supra [presence of carbon monoxide in the lungs of only one of the decedents]; Matter of Hayward, 143 Misc 401 [greater presence of carbon monoxide in lungs and comparatively greater physical warmth of one corpse]; see, also, People v Lipsky, 57 NY2d 560), it is clear that the criteria used for determining death have been the medical standards (see Matter of Bausch, 100 Misc 2d 817, 818) of irreversible cessation of cardiac and respiratory functions (cf. Matter of Rose, 201 Misc 470, 472, supra; see, also, People v Dlugash, 41 NY2d 725, 730-731; Smith v Smith, 229 Ark 579, 586-587; Thomas v Anderson, 96 Cal App 2d 371, 375).

(b)

Within the past two decades, machines that artificially maintain cardiorespiratory functions have come into widespread use. This technical accomplishment has called into question the universal applicability of the traditional legal and medical criteria for determining when a person has died.3

These criteria were cast into flux as the medical community gained a better understanding of human physiology.4 *351It is widely understood that the human brain may be anatomically divided, generally, into three parts: the cerebrum, the cerebellum, and the brain stem. The cerebrum, known also as the “higher brain,” is deemed largely to control cognitive functions such as thought, memory, and consciousness. The cerebellum primarily controls motor coordination.5 The brain stem, or “lower brain,” which itself has three parts known as the midbrain, pons, and medulla, controls reflexive or spontaneous functions such as breathing, swallowing, and “sleep-wake” cycles.6

In addition to injuries that directly and immediately destroy brain tissue, certain physical traumas may indirectly result in a complete and irreversible cessation of the brain’s functions. For example, a direct trauma to the head can cause great swelling of the brain tissue, which, in turn, will stem the flow of blood to the brain. A respiratory arrest will similarly cut off the supply of oxygen to the blood and, hence, the brain.7 Within a relatively short period after being deprived of oxygen, the brain will irreversibly stop functioning.8 With the suffocation of the higher brain all cognitive powers are lost and a cessation of lower brain functions will ultimately end all spontaneous bodily functions.9

Notwithstanding a total irreversible loss of the entire brain’s functioning, contemporary medical techniques can maintain, for a limited period, the operation of the heart and the lungs.10 Respirators or ventilators can substitute for the lower brain’s failure to maintain breathing.11 This artificial respiration, when combined with a chemical regimen, can support the continued operation of the heart.12 This is so because, unlike respiration, the physical con*352tracting or “beating” of the heart occurs independently of impulses from the brain: so long as blood containing oxygen circulates to the heart, it may continue to beat and medication can take over the lower brain’s limited role in regulating the rate and force of the heartbeat.13

It became clear in medical practice that the traditional “vital signs” — breathing and heartbeat — are not independent indicia of life, but are, instead, part of an integration of functions in which the brain is dominant.14 As a result, the medical community began to consider the cessation of brain activity as a measure of death.15

The movement in law towards recognizing cessation of brain functions as criteria for death followed this medical trend. The immediate motive for adopting this position was to ease and make more efficient the transfer of donated organs.16 Organ transfers, to be successful, require a “viable, intact organ.”17 Once all of a person’s vital functions have ceased, transferable organs swiftly deteriorate and lose their transplant value.18 The technical ability to artificially maintain respiration and heartbeat after the entire brain has ceased to function was sought to be applied in cases of organ transplant to preserve the viability of donated organs.19

Thus, the first legal recognition of cessation of brain functions as a criterion for determining death came in the *353form of a Kansas statute enacted in 1970.20 Denominated “[a]n Act relating to and defining death,” the statute states, in part, that death will be deemed to have occurred when a physician applying ordinary medical standards determines that there is an “absence of spontaneous respiratory and cardiac functions and * * * attempts at resuscitation are considered hopeless * * * or * * * there is the absence of spontaneous brain function.”21

In the years following enactment of this statute, a growing number of sister States enacted statutes of their own.22 Some opted for the Kansas approach.23 Others defined death solely in terms of brain-based criteria as determined by accepted methods of medical practice.24 And still others retain the cardiorespiratory yardstick, but provide that when artificial means of sustaining respiration and heartbeat preclude application of the traditional criteria, death may be determined according to brain-based criteria, namely the irreversible cessation of brain functions.25 In the absence of any statute defining death, some jurisdictions have judicially adopted brain-based criteria for determining death.26 Professional and quasi-governmental *354groups (including the American Bar Association, the American Medical Association, the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, and the National Conference of Commissioners on Uniform State Laws) have jointly indorsed a single standard that includes both cardiorespiratory and brain-based criteria.27

(c)

In New York, the term “death”, although used in many statutes, has not been expressly defined by the Legislature. This raises the question of how this court may construe these expressions of the term “death” in the absence of clarification by the Legislature. When the Legislature has failed to assign definition to a statutory term, the courts will generally construe that term according to “its ordinary and accepted meaning as it was understood at the time” (People ex rel. Lichtenstein v Langan, 196 NY 260, 264). If the term at issue has been judicially defined prior to its use in a statute, however, that definition will be assigned to the term, absent contrary indications (People v Richards, 108 NY 137; see People v Most, 128 NY 108, 113; cf. Orinoco Realty Co. v Bandler, 233 NY 24). In every case, of course, the term must be read in accordance with the apparent purpose of the statute in which it is found (see People v Ryan, 274 NY 149; People v Kaye, 212 NY 407).

Bearing these principles in mind, it must be added that statutory construction is not “a ritual to be observed by unimaginative adherence to well-worn professional phrases” (Frankfurter, Some Reflections on the Reading of Statutes, 47 Col L Rev 527, 529). For, as this court has observed, “[f]ew words are so plain that the context or the occasion is without capacity to enlarge or narrow their extension” (Surace v Danna, 248 NY 18, 21). This is particularly true when a “word * * * must be applied under changed conditions” (Dixon v Robbins, 246 NY 169, 173; see, also, People v Hines, 284 NY 93,101-103). The guiding *355principle is that there must always be fidelity to the fair import of the term (see Dixon v Robbins, supra).

It has been called to this court’s attention that the Legislature has, on a number of occasions, had bills before it that would expressly recognize brain-based criteria for determining death and has taken no affirmative action (see People v Bonilla, 95 AD2d 396,402, n 5 [opn per Rubin, J.]). This legislative void in no way impedes this court from fulfilling its obligation to construe laws of the State. Indeed, advances made in medical science have caused a focus on the issues of when a jury may find criminal responsibility for homicide, of when physicians may transfer donated organs, and of when a person’s body may be accorded the dignity of final repose. It is incumbent upon this court to instill certainty and uniformity in these important areas.

We hold that a recognition of brain-based criteria for determining death is not unfaithful to prior judicial definitions of “death”, as presumptively adopted in the many statutes using that term. Close examination of the common-law conception of death and the traditional criteria used to determine when death has occurred leads inexorably to this conclusion.

Courts have not engaged in a metaphysical analysis of when life should be deemed to have passed from a person’s body, leaving him or her dead. Rather, they have conceptualized death as the absence of life, unqualified and undefined (see Evans v People, 49 NY 86, 90, supra). On a practical level, this broad conception of death as “the opposite of life” was substantially narrowed through recognition of the cardiorespiratory criteria for determining when death occurs. Under these criteria, the loci of life are the heart and the lungs: where there is no breath or heartbeat, there is no life. Cessation manifests death.

Considering death to have occurred when there is an irreversible and complete cessation of the functioning of the entire brain, including the brain stem, is consistent with the common-law conception of death (see Commonwealth v Golston, 373 Mass 249, 254). Ordinarily, death will be determined according to the traditional criteria of irreversible cardiorespiratory repose. When, however, the *356respiratory and circulatory functions are maintained by mechanical means, their significance, as signs of life, is at best ambiguous. Under such circumstances, death may nevertheless be deemed to occur when, according to accepted medical practice, it is determined that the entire brain’s function has irreversibly ceased.

Death remains the single phenomenon identified at common law; the supplemental criteria are merely adapted to account for the “changed conditions” that a dead body may be attached to a machine so as to exhibit demonstrably false indicia of life. It reflects an improved understanding that in the complete and irreversible absence of a functioning brain, the traditional loci of life — the heart and the lungs — function only as a result of stimuli originating from outside of the body and will never again function as part of an integrated organism.28

This court searches in vain for evidence that, apart from the concept of death, the Legislature intended to render immutable the criteria used to determine death. By extension, to hold to the contrary would be to say that the law could not recognize diagnostic equipment such as the stethoscope or more sensitive equipment even when it became clear that these instruments more accurately measured the presence of signs of life.

Moreover, the Legislature has consistently declared, from the time it adopted the Field Commission’s draft of a Penal Code in 1881 through several recodifications, that our Penal Law should be construed “according to the fair *357import of [its] terms to promote justice and effect the objects of the law” (Penal Law, § 5.00). It is the first object of our Penal Law “[t]o proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests” (Penal Law, § 1.05, subd 1). Therefore, in the instant matters, to construe our homicide statute to provide for criminal responsibility for homicide when a defendant’s conduct causes injury leading to the victim’s total loss of brain functions, is entirely consistent with the Legislature’s concept of death.

(d)

One must be careful to distinguish the effect of this decision — determining when a person has died — from issues raised in related but qualitatively distinct cases — determining when a person may be allowed to die. In Matter of Storar (52 NY2d 363), this court reviewed two separate applications brought on behalf of two terminally ill patients. One sought permission to terminate extraordinary medical care. The other sought permission, over the patient’s mother’s objection, to administer medically necessary blood transfusions that would have prolonged the patient’s short-lived life. A personal right to decline medical care, founded at common law, was applied in the first case as there existed clear and convincing evidence that this was the patient’s personal desire. But, in the second case, the court held that, in the absence of such evidence of personal intent (there, due to the patient’s incompetence), a third party has no recognized right to decide that the patient’s quality of life has declined to a point where treatment should be withheld and the patient should be allowed to die (compare Matter of Storar, 52 NY2d, at pp 370, n 2, 382, with id., at pp 389-391 [Jones, J., dissenting in part]).

Today’s decision is no retreat from that holding. Under existing law, third parties are without authority to determine on behalf of the terminally ill that they should be permitted to die. This court will make no judgment as to what is for another an unacceptable quality of life. But, when a determination has been made according to accepted medical standards29 that a person has suffered an irreversi*358ble cessation of heartbeat and respiration, or, when these functions are maintained solely by extraordinary mechanical means, an irreversible cessation of all functions of the entire brain, including the brain stem, no life traditionally recognized by the law is present in that body.30

Ill

Each defendant correctly notes that the respective Trial Judges did not expressly instruct the juries concerning the criteria to be applied in determining when death occurred. Whether medically accepted brain-based criteria are legally cognizable became ah issue in these cases when the respective juries heard testimony concerning the victims being pronounced medically dead while their hearts were beating and before artificial maintenance of the cardiorespiratory systems was discontinued. To properly evaluate whether these diagnoses of death were legally and medically premature and, therefore, whether the subsequent activities were possibly superseding causes of the deaths, the juries had to have been instructed as to the appropriate criteria for determining death: irreversible cessation of breathing and heartbeat or irreversible cessation of the entire brain’s functioning.

The courts here adequately conveyed to the juries their obligation to determine the fact and causation of death. The courts defined the criteria of death in relation to the chain of causation. By specifically charging the juries that they might consider the surgical procedures as superseding *359causes of death, the courts made clear by ready implication that death should be deemed to have occurred after all medical procedures had ended.

The trial courts could have given express instructions that death may be deemed to have occurred when the victims’ entire brain, including the brain stem, had irreversibly ceased to function. On the facts of these cases, that would have been the better practice. But, as mentioned, the brain-based criteria are supplemental to the traditional criteria, each describing the same phenomenon of death. In the context of a criminal case for homicide, there is no theoretical or practical impediment to the People’s proceeding under a theory that the defendant “cause[d] the death” of a person, with death determined by either criteria.

Even though each of these cases was presented to a jury which had been charged that death should be deemed to have occurred after the medical intervention had ended, testimony concerning the attending physicians’ diagnoses of the victims as dead, according to brain-based criteria, was nonetheless highly relevant. It was these medical pronouncements that caused the victims to be removed from the medical systems that maintained their breathing and heartbeat. If the victims were properly diagnosed as dead, of course, no subsequent medical procedure such as the organ removals would be deemed a cause of death. If victims’ deaths were prematurely pronounced due to a doctor’s negligence, the subsequent procedures may have been a cause of death, but that negligence would not constitute a superseding cause of death relieving defendants of liability (see People v Stewart, 40 NY2d 692, 697-698; People v Kane, 213 NY 260, 270). If, however, the pronouncements of death were premature due to the gross negligence or the intentional wrongdoing of doctors, as determined by a grave deviation from accepted medical practices or disregard for legally cognizable criteria for determining death, the intervening medical procedure would interrupt the chain of causation and become the legal cause of death (see People v Kane, supra, at pp 270-271; see, also, State v Scates, 50 NC 420). Thus, the propriety of the medical procedures is integral to the question of causation.

*360A review of the records, viewed in a light most favorable to the People, indicates that there was sufficient evidence for a rational juror to have concluded beyond a reasonable doubt that each defendant’s conduct caused the victim’s death and that the medical procedures were not superseding causes of death (see People v Contes, 60 NY2d 620, 621). There was ample testimony at both trials to the effect that determining death by brain-based criteria had long been an accepted medical practice. Nor were the physicians acting without some legal authority in grounding their determinations on brain-based criteria. In 1975, a lower court construed the term “death,” as used in New York’s enactment of the Uniform Anatomical Gift Act (see Public Health Law, art 43), as embracing brain-based criteria (see Matter of New York City Health & Hosps. Corp. v Sulsona, 81 Misc 2d 1002). When the instant cases arose several years later, there existed no contrary statement of the law by either the Legislature or any appellate court.

An expert medical witness for defendant Bonilla cast some aspersions on the particular diagnostic tests performed by the doctors in that case. In the face of that testimony, however, there was substantial testimony by other experts indicating that the diagnostic tests comported with accepted medical practice. Defendant Eulo offered no rebuttal to the testimony that the pronouncement of death was made in accordance with accepted medical practices. Thus, there was sufficient evidence for both juries to have found beyond a reasonable doubt that the medical decisions did not break the causal chain linking defendants’ conduct and the victims’ deaths.

IV

Defendant Eulo’s other arguments have been considered and found to be either unpreserved or without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

In each case: Order affirmed.

MOORE, Justice.

The State argues that the trial court erred in ruling that G.S. 14-202, the so-called “Peeping Tom” statute, is unconstitutional. Respondent, however, contends that this statute is unconstitutional for two reasons. First, that it is unconstitutionally vague, *238because “men of common intelligence must necessarily guess at its meaning and differ as to its application. . ." Connally v. General Construction Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126 (1926).

G.S. 14-202 provides:

“Secretly peeping into room occupied by female person. — Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court.”

The requirement that a statute be couched in terms of appropriate definiteness has been referred to as a fundamental common law concept. Pierce v. United States, 314 U.S. 306, 86 L.Ed. 226, 62 S.Ct. 237 (1941). Early in the last century this Court, in Drake v. Drake, 15 N.C. 110 (1833), said:

“Whether a statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it, be itself intelligible. . . .” See also State v. Partlow, 91 N.C. 550 (1884).

This requirement of definiteness has in this century been declared an essential element of due process of law. See Connally v. General Construction Co., supra. Several United States Supreme Court cases indicate that the evils remedied by the definiteness requirement are the lack of fair notice of the conduct prohibited and the failure to define a reasonably ascertainable standard of guilt. See Lanzetta v. New Jersey, 306 U.S. 451, 83 L.Ed. 888, 59 S.Ct. 618 (1939); Connally v. Construction Co., supra; cf. Note, “The Void-For-Vagueness Doctrine In The Supreme Court,” 109 U. Pa. L. Rev. 66, 77 (1960). In present case respondent does not advance a strict vagueness argument based on the lack of intelligibility of the terms employed in the challenged statute. Instead, he argues that the statute cannot mean what it says, since, if taken literally, it would prohibit much conduct which the legislature clearly did not intend to include. Its intended scope is therefore indefinite and reasonable men could differ as to its application. Thus, concludes defendant, the statute is unconstitutionally vague.

*239In passing upon the constitutionality of the statute, we begin with the presumption that it is constitutional and must be so held unless it is in conflict with some constitutional provision of the State or Federal Constitutions. State v. Brewer, 258 N.C. 533, 129 S.E. 2d 262 (1963); State v. Warren, 252 N.C. 690, 114 S.E. 2d 660 (1960); State v. Lueders, 214 N.C. 558, 200 S.E. 22 (1938). A well recognized rule in this State is that, where a statute is susceptible to two interpretations — one constitutional and one unconstitutional — the Court should adopt the interpretation resulting in a finding of constitutionality. Smith v. Keator, 285 N.C. 530, 206 S.E. 2d 203, (1974); State v. Frinks, 284 N.C. 472, 201 S.E. 2d 858 (1974); Randleman v. Hinshaw, 267 N.C. 136, 147 S.E. 2d 902 (1966).

[1, 2] Criminal statutes must be strictly construed. State v. Ross, 272 N.C. 67, 157 S.E. 2d 712 (1967); State v. Brown, 264 N.C. 191, 141 S.E. 2d 311 (1965). But, while a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. State v. Brown, 221 N.C. 301, 20 S.E. 2d 286 (1942); State v. Hatcher, 210 N.C. 55, 185 S.E. 435 (1936). The intent of the legislature controls the interpretation of a statute. State v. Hart, 287 N.C. 76, 213 S.E. 2d 291 (1975), and cases cited therein. When the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein. State v. Camp, 286 N.C. 148, 209 S.E. 2d 754 (1974). But when a statute is ambiguous or unclear in its meaning, resort must be had to judicial construction to ascertain the legislative will, State v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936), and the courts will interpret the language to give effect to the legislative intent. Ikerd v. R.R., 209 N.C. 270, 183 S.E. 402 (1936). As this Court said in State v. Partlow, 91 N.C. 550 (1884), the legislative intent “. . . is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. . . .” Other indicia considered by this Court in determining legislative intent are the legislative history of an act and the circumstances surrounding its *240adoption, Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E. 2d 548 (1967); earlier statutes on the same subject, Lithium Corp. v. Bessemer City, 261 N.C. 532, 135 S.E. 2d 574 (1964); the common law as it was understood at the time of the enactment of the statute, State v. Emery, 224 N.C. 581, 31 S.E. 2d 858 (1944), 157 A.L.R. 441; and previous interpretations of the same or similar statutes, cf. Wainwright v. Stone, 414 U.S. 21, 38 L.Ed. 2d 179, 94 S.Ct. 190 (1973).

[3] Finally, it is a well settled rule of statutory construction that, where a literal interpretation of the language of a statute would contravene the manifest purpose of the statute, the reason and purpose of the law will be given effect and the strict letter thereof disregarded. State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970); see 12 Strong, N.C. Index 3d, Statutes § 5.9, and cases cited therein. Where possible “the language of a statute will be interpreted so as to avoid an absurd consequence. . . .” Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E. 2d 1, 5 (1966).

On the subject of the constitutional challenge of a statute for indefiniteness, the United State Supreme Court has said, in Boyce Motor Lines v. United States, 342 U.S. 337, 96 L.Ed. 367, 72 S.Ct. 329 (1952):

“A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.”

See also State v. Hales, 256 N.C. 27, 122 S.E. 2d 768 (1961); State v. Morrison, 210 N.C. 117, 185 S.E. 674 (1936).

In Wainwright v. Stone, supra, where defendant challenged the Florida “Crime Against Nature” statute on grounds of *241vagueness, the United States Supreme Court, in upholding the constitutionality of the statute, held that the judgment of federal courts as to the vagueness of a state statute must be made in the light of prior state constructions of the statute. This holding implies that a statute challenged on the grounds of impermissible vagueness should not be tested for constitutional specificity in a vacuum, but should be judged in the light of its common law meaning, its statutory history and the prior judicial interpretation of its particular terms.

Applying the foregoing principles, we now turn to an examination of G.S. 14-202, commonly known as the “Peeping Tom” statute. The statute apparently was derived from the common law crimes of common nuisance and eavesdropping. See IV Blackstone 166, 168. The words “Peeping Tom” have a commonly understood meaning in this country as being one who sneaks up to a window and peeps in for the purpose of spying on and invading the privacy of the inhabitants. See, for instance, Ga. Code, § 26-3002; 70 C.J.S. p. 384.

Our statute, passed by the General Assembly in 1923, makes it a crime to “peep secretly.” This Court has had the occasion to deal with this statute in four prior cases: State v. Banks, 263 N.C. 784, 140 S.E. 2d 318 (1965); State v. Bivins, 262 N.C. 93, 136 S.E. 2d 250 (1964); State v. Bass, 253 N.C. 318, 116 S.E. 2d 772 (1960); State v. Peterson, 232 N.C. 332, 59 S.E. 2d 635 (1950). All four of these cases involved conduct within the purview of the common usage of the term “Peeping Tom.” In State v. Bivins, supra, the Court interpreted the word “peep” in a manner so as to convey the idea of a “Peeping Tom.” The Court said that “to peep” means “to look cautiously or slyly — as if through a crevice — out from chinks and knotholes.”

This Court has not expressly defined the word “secretly” as used in the statute. Respondent argues that the word adds nothing to the clarification of the meaning of the statute. In order to pass on his contention, we must resort to the rules of statutory construction set forth above, and to the additional rule that words of a statute are not to be deemed merely redundant if they can reasonably be construed so as to add something to the statute in harmony with its purpose. In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968). See also State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972).

*242[4] In State v. Banks, supra, the Court stated that, when charged with a violation of G.S. 14-202, the defendant “is entitled to know the identity of the female person whose privacy he is charged with having invaded.” This Court has, therefore, indicated that the word “secretly” as used in G.S. 14-202 conveys the definite idea of spying upon another with the intention of invading her privacy. Hence, giving the language of the statute its meaning as interpreted by this Court, G.S. 14-202 prohibits the wrongful spying into a room upon a female with the intent of violating the female’s legitimate expectation of privacy. This is sufficient to inform a person of ordinary intelligence, with reasonable precision, of those acts the statute intends to prohibit, so that he may know what acts he should avoid in order that he may not bring himself within its provisions.

Defendant cites Kahalley v. State, 254 Ala. 482, 48 So. 2d 794, to support his contention that G.S. 14-202 is unconstitutionally vague. In Kahalley, the Alabama Supreme Court held that the Alabama “Peeping Tom” statute was-violative of the Fourteenth Amendment in that it was so vague and uncertain that it fixed no ascertainable standard whereby the public could be governed. The Alabama statute is, however, distinguishable from G.S. 14-202 in that the former statute contains no requirement that the peeping be done ‘’secretly.” Thus, this element of wrongful intent required by the North Carolina statute is missing in the Alabama statute.

We hold, therefore, that G.S. 14-202 is sufficiently definite to give an individual fair notice of the conduct prohibited, and to guide a judge in its application and a lawyer in defending one charged with its violation, and that this statute violates neither Article I, Section 19, of the North Carolina Constitution, nor the Due Process Clause of the Federal Constitution by reason of vagueness and uncertainty.

[5] Respondent next argues that G.S. 14-202 is unconstitutional because it prohibits innocent conduct, and is therefore overly broad. In speaking to a similar contention, Mr. Justice Brennan, for the Supreme Court of the United States, in Zwickler v. Koota, 389 U.S. 241, 19 L.Ed. 2d 444, 88 S.Ct. 391 (1967), stated:

“[H]is constitutional attack is that the statute, although lacking neither clarity nor precision, is void for *243‘overbreadth,’ that is, that it offends the constitutional principle that ‘a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ [Citations omitted.]”

In Broadrick v. Oklahoma, 413 U.S. 601, 37 L.Ed. 2d 830, 93 S.Ct. 2908 (1973), the United States Supreme Court, in interpreting the overbreadth doctrine, said:

“. . . To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. . . .”

In that case, the Court indicated that the doctrine of over-breadth has not and will not be invoked when a limiting construction has been or could be placed on the challenged statute. Id. at 613, 37 L.Ed. 2d at 841.

In Lemon v. State, 235 Ga. 74, 218 S.E. 2d 818 (1975), the Supreme Court of Georgia upheld the validity of their “Peeping Tom” statute. There, as here, defendant argued that the Georgia statute was overbroad and hence unconstitutional. In answer to this argument, that court stated:

“[T]he statute is not so overbroad as to proscribe legitimate conduct. The statute is sufficiently narrowed by the requirement that the defendant act with wrongful intent, thereby omitting from its scope those persons who have a legitimate purpose upon another’s property, or those who only inadvertently glance in the window of another.”

Likewise, our statute, G.S. 14-202, is sufficiently narrowed by judicial interpretation to require that the act condemned must be a spying for the wrongful purpose of invading the privacy of the female occupant of the room, thereby omitting from its scope those persons who have a legitimate purpose upon another’s property and those who only inadvertently glance in the window of another. Thus, the statute is not so overbroad as to proscribe *244legitimate conduct. We hold, therefore, that the statute is not unconstitutional for overbreadth.

Judge Gentry’s ruling that G.S. 14-202 is unconstitutional is erroneous and is reversed. The case is remanded to the District Court of Guilford County for further proceedings in accordance with this opinion.

Reversed and remanded.