Elliott v. Mills

BRETT, Judge.

I concur in the foregoing opinion because under the present law there is no other alternative. The writ of prohibition cannot be granted for the reasons so ably set forth in my associate’s opinion. On the question of the year and a day rule, our hands are tied. Our statutory definitions of murder and manslaughter are entirely adequate if death instantaneously follows the blow, or occurs within a short time thereafter. Turner v. State, 8 Okl.Cr. 11 , 126 P. 452 . But, if one be the victim of an assault and lingers and dies, as in this case fourteen months after the infliction of the blow or injury, a time element intervenes which creates a grave uncertainty in the law as to when the homicide occurs. In resolving this uncertainty as to when under such conditions the crime of murder is complete, as has been demonstrated in the Court’s opinion, there is no' other recourse than to the common law. In doing this we follow the principle announced by Judge Richardson in Stewart v. State, 4 Okl.Cr. 564, 569 , 109 P. 243, 246 , 32 L.R.A.,N.S, 505:

“It is true that there are no common-law crimes in this state, but nevertheless, when the Legislature creates without defining an offense which was a crime under the common law, the common-law definition of the crime will be adopted. This is reasonable, and is sustained by plenty of authority. For instance, there are no common-law crimes against the United States, and the United States courts can take cognizance only of offenses made punishable by some express provision of the Constitution, laws, or treaties of the United States. United States v. Eaton, 144 U.S. 677 , 12 S.Ct. 764 , 36 L.Ed. 591 ; Pettibone v. United States, 148 U.S. 197 , 13 S.Ct. 542 , 37 L.Ed. 419 . But it is uniformly held in the United States courts that, when Congress creates a common-law offense without defining it, the courts will look to the common law for the definition of the crime. In re Greene (C.C.) 52 F. 104 ; United States v. Cardish, D. C., 143 F. 640 . In Pettibone v. United States, supra, Chief Justice Fuller said:

“ ‘The courts of the United States have no jurisdiction over offenses not made punishable by the Constitution, laws or treaties of the United States, but they resort to the common law for the definition of terms by which offenses are designated.’

“No statute of the United States defines murder. Section 5339 of the *1115 Revised Statutes of the United States (U.S.Comp.St. 1901, p. 3627) merely provides that ‘every person who commits murder’ in any place under the exclusive jurisdiction of the United States ‘shall suffer death,’ and by Act Jan. IS, 1897, c. 29, 29 Stat. 487 (U.S. Comp.St.1901, p. 3620) it is provided that the jury may qualify their verdict so as to provide for life imprisonment, instead of the assessment of the death penalty. And the United States courts have uniformly said that, inasmuch as the statutes do not define the crime of murder, resort must be had to the common law for its definition.”

Many opinions from other courts are cited in support of the Court’s views. This opinion was concurred in by Judges Furman and Doyle. It cannot be successfully denied that our statutes are inadequate to define what constitutes murder or manslaughter under the conditions herewith presented for the element as to when death must ensue is completely ignored. But, the common law does establish the time that death must ensue as within a year and a day. Hence, we have but two alternatives; one is resort to the common law, as my learned associate has done, or resort to judicial legislation, which is not only in bad judicial taste, but is an invasion of legislative power and unconstitutional. Hence, the adoption, rejection, or modification of the rule under consideration is fundamentally a matter of legislative policy.

In reaching its conclusion, the legislature may consider the following things urged against the adoption of the seven hundred year old rule. It may consider that when the rule was promulgated the average life expectancy was not more than thirty four years, and that through the marvelous advancements in modern medical science that span has now been increased to approximately sixty nine years in this country. Furthermore, when this rule was advanced, medical science was in its early infancy and determination of cause of death was highly speculative. There was no other avenue than the rule of thumb, by establishment of the presumption that if a man does not die from a blow or injury within a year and a day, he is presumed to have died from some other cause. In this country in this atomic age, cause of death is no longer a matter of pure speculation, but is a matter of scientific determination and medical proof. It may consider that medical science can now prolong at least the semblance of life for years, but seven hundred years ago, nature just ran its course. Under modern conditions, it may consider if this rule is to be adopted in many cases of premeditated murder and manslaughter the result would be exoneration of the killer by presumption instead of by proof. Here, it appears there may never have been any sign of recovery from the blow sustained and death was the undoubted result thereof. It may be that when measured in the light of modern methods of determining cause of death in such cases, .the legislature may conclude the rule has attained the limit of its logic.

If such is its conclusion, it may pursue any of the following courses. First, it may adopt the rule as a conclusive presumption. Second, it may positively repudiate the rule as archaic and outmoded. Third, it may refuse to consider the matter, let the Court’s opinion stand, and by its silence give sanction to the rule. Fourth, it may modify the rule and extend the span of time for invoking the presumption, but if so, it must determine the point of extension, which entails speculation. Fifth, it may do what this writer believes would be in keeping with both sound reason and justice, recognize the rule as a rebuttable presumption and thus remove adjudication of such grave matters from the field of presumptive law and place it on the basis of fact to be determined by the jury upon proper proof.

In arriving at our conclusions in my associate’s opinion and in this one, we have sought to respect the wisdom of the past. Yet, we cannot be unmindful of what was said by Judge Furman in Turner v. State, supra, the world should be ruled by the living and not by the dead, that the law *1116 should keep even step with the march of civilization. I am of the personal opinion that the Legislature and the Court’s failure to keep up with the march of civilization gives credence to the statement:

“The law is a blind fool, dealing in technicalities.”

Ex parte Lewis, 85 Okl.Cr. 322 , 188 P.2d 367, 368 . Therein we further said:

“There is no sacredness in precedents that produce confusion and work injustice either to the individual or to the state, even though they are based upon the best of intentions.”

Whether the precedents by which we are bound in this instance are good or bad, they are nevertheless now the law. Whether they are to be continued is a matter of policy and that is a question for the Legislature and not the courts.

Hence, we call this matter to the attention of the Legislature. It alone has the power to approve either by positive action or legislative silence this seven hundred year old presumption. It alone must determine the question of whether one charged with murder or manslaughter may be exonerated by a legalistic windfall fashioned from legal necessity of judicial interpretation based upon the law as it now exists.