On certification to Superior Court, Appellate Division, opinion reported at 148 N.J. Super. 405 (1977).
For reversal -- Chief Justice Hughes, Justices Sullivan, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- Justice Pashman. Conford, P.J.A.D. (temporarily assigned), concurring. Schreiber, J., concurring. Justice Sullivan joins in this opinion. Clifford, J., concurring. Chief Justice Hughes and Justice Handler join in this opinion. Pashman, J., dissenting. Hughes, C.J., and Clifford and Handler, J.J., would abolish the rule prospectively; Sullivan and Schreiber, J.J., would retain the rule; Conford, P.J.A.D., would modify it and Pashman, J., would abolish the rule retroactively.
The issues in this appeal are: (1) whether the "year and a day" common-law rule in murder cases has been the law of New Jersey to date; (2) whether the rule should now be abolished or altered judicially; and (3), if the answers to (1) and (2) are in the affirmative, whether such change in the law should be applied retroactively to the defendant, who shot his victim September 17, 1972, with resulting death on November 19, 1973, and was convicted of murder. The common-law rule held that "[i]n order also to make killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered * * *." Blackstone Commentaries, Bk. IV*195.
The background facts in this case are stated in the Appellate Division opinion, 148 N.J. Super, at 407-408. Defendant was first indicted, prior to the victim's death, for assault with an offensive weapon and assault with intent to kill. After the death, defendant was indicted for murder. The indictments were tried together after defendant's motion to dismiss the murder indictment on the basis of the year and a day rule was denied. He was convicted of second degree murder and of each of the assault charges. The Appellate Division on appeal affirmed the murder conviction but merged the assault convictions with that for the murder. 148 N.J. Super. at 414. The court accepted defendant's contention that the year and a day rule became and remained a part of this State's common-law jurisprudence but it held that the rule could and should be abolished judicially because it "does not conform to present-day medical realities,
principles of equity or public policy." Id. at 412-413. The court further held that since defendant had not relied on the common-law rule when he committed his lethal assault on the victim it was not unjust to apply the abolition of the common-law rule to defendant retroactively. Id. at 413-414.
We granted certification. 75 N.J. 540 (1977).
Our consideration of the issues does not bring a majority of the Court to a single view both on the matter of retention, abolition or modification of the year and a day rule and as to the effect of any such determination on the judgment under appeal. Four members of the Court would abolish the rule, but three of them would make such an adjudication prospective only, and would reverse the affirmance of the conviction by the Appellate Division. The fourth of those members would affirm the judgment of the Appellate Division. Two members of the Court would retain the rule and accordingly reverse the appellate judgment. The seventh member would modify the common-law rule so as to extend the period from a year and a day to three years, but would so hold prospectively only.
Accordingly, the judgment of this Court is one of reversal of the judgment of the Appellate Division and remand to the trial court with directions to dismiss the indictment for murder and to reinstate the conviction and sentence for assault with intent to kill.*fn1
We proceed to explain the conclusions of a majority of the Court to the effect that (1) the year and a day rule was the heretofore prevailing common-law rule in this State; and (2) its abolition or modification at the present time should not operate retroactively to incriminate this defendant for murder.
There is no dispute between the parties that the year and a day rule was the common law of England prior to the adoption of the New Jersey State Constitution of 1776. The abundance and unanimity of authority on the point are manifest. Blackstone Commentaries, op. cit. supra; III Coke, Inst. 47, 53 (4th ed. 1662); 1 East P.C. c. 5, p. 214, 3 Chitty, The Criminal Law *726 (1819); 1 Hawkins, P.C. c. 13 at 92 (Curwood ed. 1824). The leading modern texts are in accord. Wharton, The Law of Homicide, § 60 (1938); 2 Burdick Law of Crime § 423 (1946).
The transition of the pre-Revolutionary common law of England to the present era in this State was accurately described by Justice Heher in his dissenting opinion in Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 48-49 (1958) as follows:
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 Article thereof takes effect shall remain in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.'*fn2
However, the State argues that the year and a day rule is not now a part of the common law of this State for two
reasons. First, although no court in this State prior to this case ever expressly declared the rule non-existent here, we should hold it not to have emerged from the Constitution of 1947 because it is "anachronistic as a result of advances in medical technology and expansions in the admissibility of expert witnesses." Second, our statutory provisions concerning murder, N.J.S.A. 2A:113-1 and 2, altered and abrogated the common-law year and a day rule by omitting any reference thereto. The latter rationale was the basis for the rejection of defendant's motion to dismiss the indictment in the trial court. We agree with the Appellate Division's dismissal of these contentions.
As to the first point made by the State, it does not constitute a tenable argument that the year and a day rule was not transmitted to our current common law by virtue of the constitutional provisions cited in the excerpt quoted above from the dissent in Collopy, but rather a plea that the rule should now be abolished or altered. Whether or not the rule should be changed, it indubitably has persisted to the present day as the common law of England carried over by our several constitutions. See also Greenspan v. Slate, 12 N.J. 426, 433 (1953); In re Vince, 2 N.J. 443, 453 (1949); 2 Schlosser, Criminal Laws of New Jersey (3d ed. 1970) § 54:4 at 88.
The State's second point does not impress us. Many common law crimes and concepts have survived the enactment of this State's penal statutes. Our cases have consistently held that in enacting the murder statutes the Legislature created no new crimes but merely made distinctions, for the purpose of imposing different penalties between the most heinous and less aggravated grades of the crimes of murder. Thus, in Graves v. State, 45 N.J.L. 347 (E. & A. 1883), it was declared:
That which was murder at the common law was, after the statute, still murder here, but the most flagitious species was designated as the highest degree and visited with the extreme penalty while all others were declared to constitute a lower class and to be punishable
accordingly. When the Legislature, commendably simplifying the form of the indictment, provided that in charging the crime it should not be necessary to set forth the manner or means whereby the death was caused, but that it should be sufficient to charge that the defendant wilfully, feloniously and of his malice aforethought killed and murdered the deceased, it merely provided that in a charge of murder, a crime well understood and well defined in the law, it should be enough to charge the crime in language sufficient to designate it. [ Id. at 358 (emphasis added)]
To the same effect see Brown v. State, 62 N.J.L. 666, 700 (E. & A. 1899), where the court stated that L. 1878, c. 235, § 107, created no new crimes but merely made a distinction with a view to the difference in punishment. As recently as State v. Brown, 22 N.J. 405 (1956), this construction was reaffirmed with regard to the current murder statutes, N.J.S.A. 2A:113-1; 113-2. The Court stated that these provisions
have not altered the nature of murder at common law; they are concerned only with the character of the punishment; the degrees do not constitute separate and distinct crimes, but merely grades of the same offense. Murder in either of the statutory degrees is murder at common law. [ Id. at 412]
The conclusion that the early New Jersey murder statutes were intended only to set the punishment for crimes whose elements were to be filled in by resort to fixed common-law principles is borne out by the titles of the early criminal statutes, each of which was entitled "An Act for the Punishment of Crimes," see, e.g., Pat. 208, § 3 (1796); Rev. of 1846, Nixon's Digest at 161; L. 1898, c. 235, p. 791. The same purpose is apparent from the language of the respective statutes.
These considerations, coupled with the general principles that a statutory repeal of the common law will not be implied unless there is a clear repugnance between the common law and the statute, see State v. Western Union Tel. Co., 12 N.J. 468, 486 (1953); Clark and Marshall, Crimes, § 1.08 at 48 (6th ed. 1958), and that penal statutes are to be
strictly construed, e.g., State v. Meinken, 10 N.J. 348, 352 (1952), suffice to demonstrate that the year and a day rule ...