¶1concurring in part and dissenting in part:
¶2For all applications within the Criminal Code of 1961, the legislature defined “person” as “an individual ….” (Ill. Rev. Stat. 1977, ch. 38, par. 2—15, effective Jan. 1, 1962.) Within the Criminal Code, the legislative intent is clear. Therein, the General Assembly, in 1975, reaffirmed the long-standing public policy which recognizes the fetus, from conception, as a human being and a legal person for purpose of a right to life. (Ill. Rev. Stat. 1977, ch. 38, par. 81—21.) The sole exception to this policy was expressly — and reluctantly — carved out for the abortion provision mandated by the United States Supreme Court ruling in Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705. It is my opinion that, but for the single exception, the public policy of this State has recognized and continues to recognize a fetus as a human being, a person, an individual.
¶3From its inception, section 9—1(a) of article 9 (Homicide) of the Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38, par. 9—1(a)) states:
“A person who kills an individual without lawful justification commits murder ….” (Emphasis added.)
¶4With clear expression that a fetus is an individual, then, one who kills a fetus, without lawful justification and outside the exception of the abortion statute, can be charged with and found guilty of murder. This is particularly true in the circumstances of the instant case where the viability of the 8 1/2-month-old fetus was unquestioned and where the evidence, in fact, showed Baby Girl Moss to be alive at the time defendant attacked Sharon Moss. I would therefore affirm the defendant’s conviction for the murder of Baby Girl Moss.
¶5Under the facts here, however, I would vacate the death penalty. In the information pertinent to Baby Girl Moss, the defendant was charged in three counts with the violation of sections 9—1(a)(1), (a)(2) and (a)(3) (Ill. Rev. Stat. 1977, ch. 38, pars. 9—1(a), (b), (c)). He was not charged under section 9—1(b), which contains the requisite conditions for the imposition of death. The State, in fact, has confessed error in this regard and admits that, because defendant was not charged under section 9—1(b), the death penalty should be vacated.
¶6I would therefore affirm the judgments of the circuit court finding defendant guilty of the murders of Sharon Moss and Baby Girl Moss, vacate the death sentence and remand the cause to the trial court for defendant’s re-sentencing.