Bischoff, Morgan and Furman. The opinion of the court was delivered by Bischoff, J.A.D.
This appeal presents the novel issue of whether New Jersey recognizes the common law rule that, in order to constitute punishable homicide, death must occur within "a year and a day" of the inflicting of the mortal wound.
The facts are relatively uncomplicated.
On September 17, 1972 defendant Roosevelt Young entered the home of his estranged wife, Patricia. Once inside he saw Samuel Story sitting in the dining room with Patricia. As defendant drew a gun Story ran from the dining room to the kitchen with defendant following. The two men had angry words in the kitchen and Story fled to the front door with defendant in pursuit. Defendant fired five shots, three of which hit Story, who "slumped" over the TV set by the door.
Defendant left the house and shortly thereafter surrendered to the police. Story was taken to a hospital where it was ascertained
that one of the bullets had entered his neck, causing severe damage to his spinal cord, resulting in complete paralysis from the neck down including all four extremities. He received extensive treatment at the hospital and was ultimately transferred to a nursing home. His condition deteriorated and he was again hospitalized; he died on November 17, 1973, 1 year and 63 days after the shooting.
Testimony of the medical examiner, who performed an autopsy on Story, established the cause of death as "pneumonia secondary to a state of quadraplegia due to the gunshot wounds." In his opinion, the death of Story was directly related to the gunshot wounds.
Defendant was first indicted July 3, 1973, while Story was still alive, for assault with an offensive weapon upon Samuel Story, contrary to N.J.S.A. 2A:90-3; assault with intent to kill, contrary to N.J.S.A. 2A:90-2; and on January 25, 1974, after the death of Story, defendant was indicted for murder, contrary to N.J.S.A. 2A:113-2. The indictments were consolidated.
Defendant's motion to dismiss the murder indictment on the ground that prosecution for murder was barred by the common law "year and a day rule" was denied, as was defendant's motion for severance.
Defendant was convicted by a jury of second degree murder, assault with an offensive weapon and assault with intent to kill. He was sentenced to a term of 15 to 25 years for the murder and concurrent terms of 5 to 7 years on each of the other two convictions.
Defendant contends the trial judge erred in refusing to dismiss the murder indictment since "Story died 1 year and 63 days after he was shot by defendant" and "the common law year and a day rule, applicable in New Jersey, barred the indictment." Our consideration of this legal issue is anchored in two facts not in dispute: (1) the year and a day rule did exist at common law, and (2) the death of Story was caused by the gunshot wounds inflicted by defendant 1 year and 63 days earlier.
The State, while conceding the existence of the "year and a day rule" at common law, argues the rule has never been -- and should not now be -- adopted as part of the law of this State.
The common law of England has a constitutional basis in our jurisprudence. It was provided in the State Constitution of 1776, Section XXII, "That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter; * * *." The 1844 Constitution ordained, Article X, Section I, that "The common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature." And the 1947 Constitution, Article XI, Section I, paragraph 3, declares that "All law, statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this Constitution or any ...