State v. Young

Clifford, J.,

concurring. I concur in the judgment of reversal and remand to the trial court for the purpose of dismissing the murder indictment and reinstating the conviction and sentence for assault with intent to kill. Likewise do I join in the per curiam opinion’s determinations, and the reasoning supporting them, that (a)- the “year and a day” rule was part of the New Jersey common law at the time of and after the critical events in this case, (b) the rule should be abolished, and (e) our decision should be applied prospectively. I write, however, to explain my hesitancy at having the Court formulate a rule establishing an extended but fixed time period in substitution for the “year and a day” rule. ’ -

The policy considerations supporting abolition' of the “year and a day” rule are concisely set forth in Judge Con-ford’s concurring opinion. In re Quinlan, 70 N. J. 10, cert. den. sub nom., Garger v. New Jersey, 429 U. S. 922 , 97 S. Ct. 319 , 50 L. Ed. 2d 289 (1976), teaches us, albeit in tragic context, that medical science is now able to sustain the critically afflicted for months and years beyond what might have been imagined only decades ago; and, as Judge Conford points out, there has been parallel progress in the development of diagnostic skills so that problems of medical causation are more readily resolved. So it' is that science helps on *260 the one hand to prolong the victim’s life and, on the other, to establish the causal relationship, if any, between the criminal’s conduct and the victim’s death. Hence it is clear that the “year and a day rule” has become a relic whose perpetuation would only impede the quest for justice.

But these very same considerations cause me not to share at all Judge Conford’s apprehension about the injustice of “a Sword of Damocles in tire form of a potential prosecution for murder [hanging] over a defendant’s head for years * * One recalls that according to the legend the king seated Damocles at a feast beneath a sword hanging by a single hair in order to teach him a lesson — there, the perils in a ruler’s life. While acknowledging that it may stretch the point to suggest that the state of uncertainty as to the victim’s — and hence his own — fate contains a similar-lesson for the assaulter, nevertheless I see nothing unjust in the perpetrator’s being exposed over an indefinite period of time to the possibility of a murder prosecution. The same factors counseling abolition of the “year and a day” rule, namely, scientific advances which at once prolong life and allow the pinpointing of a causal relationship, between an assault and death, favor leaving open-ended the defendant’s exposure to conviction for murder. After all, the conventional requirement of proof beyond .a reasonable doubt continues to apply to every element of a prosecution for murder, and so the State must, despite the passage of time, satisfy a jury that that burden has been sustained on the issue of causal relationship. If the uncertainty of the outcome proves worrisome to the defendant, such are the fruits — and I suggest the just fruits — of his misdeed.

Even if, as a matter of public policy, it is desirable that a specific period be fixed, then that is a matter peculiarly appropriate for determination by the legislature rather than this Court. Indeed, I am unable to discover a single jurisdiction in which any court has made so bold as to substitute for the “year and a day” rule a different time period during which *261 death following an assault must occur in order for the crime to be murder. I presume to think this is so because every court which has given any thought at all to the question must readily have concluded that universally accepted principles of separation of powers dictate that this subject be addressed, if at all, by the legislature. I would leave it there, where it belongs.

Chief Justice Hughes and Justice Handles join in this opinion.