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A truth-is-stranger-than-fiction case in Texas raises an interesting twist on the question of when does life begin. It started as a simple drunken driving accident. But the passenger in the car into which the drunken defendant's truck crashed was seven-and-a-half months pregnant. As a result of the crash, the woman underwent an emergency Caesarean section and her daughter was born, weighing only 4 pounds and suffering from extensive brain damage caused by the crash. The baby lived for 44 hours after birth and then died.

Texas law provides that homicide is the taking of a human life, and it explicitly says that a fetus is not a human life for purposes of the law of homicide. For the killing to be homicide, the "person" must have been "born." Nonetheless, the defendant was charged with homicide and convicted on the following interesting legal theory: Although the injury which caused the death occurred before birth, the resulting death occurred after birth. The crucial question on appeal, therefore, will be: "When did the crime occur?"

Already, this case is being seen as part of the ongoing abortion debate between the right-to-lifers and the right-to-choicers. Anti-abortion advocates believe that if the conviction is affirmed, this case will establish the principle that a fetus is a person for purposes of the law of homicide. Pro-choice advocates believe that a reversal of the conviction will establish the principle that a fetus is not a person and that only someone who has been born is covered by the law of homicide. But this case really has little to do with the abortion debate. It is about the definition of what the criminal law calls "a continuing crime."

Some crimes occur in an instant. For example, if a defendant shoots a victim in the heart and the victim dies immediately, the entire crime of homicide is completed in a matter of seconds. But in many homicide cases, the death may occur hours, days, weeks even months later. The so-called "year and a day" rule has long recognized that reality.

It provides that if a death is to be a homicide, the victim must die within a year and a day of the wound having been inflicted. So, when a defendant shoots a victim in 1995 in Providence, R.I., and the victim dies in 1996 in a Boston hospital, the law may have to decide when the crime has occurred.

The Texas case is a bit more complex. At the time of the crash, there was no injury to a person under Texas law. The injured fetus became a person only after the crash, when it was born.

An analogous case might be the following: A state makes it a capital offense to murder specific categories of people, such as a policeman, a prison guard, etc. Several states have such laws. If a defendant murders anyone else, he is punished by life imprisonment. Because elderly people have become frequent targets of homicide, the state adds to the capital punishment list "any person over the age of 70." A defendant shoots a 69-year-old woman, who languishes for six months and then dies after her 70th birthday. Would the defendant be eligible for the death penalty?

The answer to that question can be found in an old principle of law called "lenity," which provides that when there are two plausible interpretations of the scope of a criminal statute, the courts must adopt the one more lenient to the defendant. The Supreme Court has defined this as follows: "when choice has to be made between two readings of what conduct "the legislature" has made a crime, it is appropriate, before we choose the harsher alternative, to require that "the legislature" should have spoken in language that is clear and definite."

If Texas wishes to make it homicide to injure a fetus which then dies after birth, it must say so "in language that is clear and definite." Thus far, it has not done so.

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