Appeals, Nos. 165 and 166, Jan. T., 1960, from order of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, Dec. T., 1959, Nos. 84 and 85, in case of Commonwealth of Pennsylvania v. Roy Ladd. Order affirmed; reargument refused December 30, 1960.
Neil W. Burd, for appellant.
Richard M. Rosenbleeth, Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK.
Appellant defendant was indicted in two bills, one for murder and one for manslaughter. Both indictments allege that the victim of the assault was struck on September 21, 1958, and died of it on November 1, 1959. He moved to quash the indictments for the reason that it is the common law of Pennsylvania that no one is responsible for a killing where death ensues beyond a year and a day after the stroke. The court below overruled the motions and defendant appealed. Whether the year and a day rule is and still should be current among us is the single question.
This court has not decided it before.
The only Pennsylvania authority is Commonwealth v. Evaul, 5 Pa. D. & C. 105 (1924), when Judge GORDON assumed that the rule existed in Pennsylvania in cases of felonious homicide but refused to extend it to the misdemeanor of involuntary manslaughter, which was the case he had before him. However, he mentioned the existence of confusion over the nature of the rule and cited Heydon's Case, 4 Coke's Reports 41, where the time was held to run from the death and not from the stroke.
In the instant case the court below also felt that as late as 1736, when Sir Matthew Hale's "History of the Pleas of the Crown" was published, there was disagreement among common law scholars over the nature of the rule and the time from which it ran.
We are of course concerned with the date of May 14, 1776, when such of the common and statutory law of England as had theretofore been in force in the province of Pennsylvania became the law of the Commonwealth by the Act of January 28, 1777, 1 Sm. L. 429, § 2; 46 PS § 152.
At common law there were three ways of dealing with murder and manslaughter. One was by indictment at the suit of the King, and this became in England and the United States what we recognize as public prosecution. The second was by an appeal of death, which was a private and vindictive process by an interested party and which grew out of the old Germanic custom of "weregild", or compensation for the death. The third was by inquisition against deodands, which is of no present interest because it involved the forfeiture of personal chattels that had caused death.
Blackstone defines murder in Chapter 14, Book IV, of the Commentaries (1769), at page 195, and gives the year and a day rule, timed from the stroke in prosecutions for murder, at page 197. He then discusses prosecutions and appeals in Chapter 23, Book IV, pp. 299-312, and at page 311 shows that by the Statute of Gloucester, 6 Edw. 1, c. 9 (1278), "all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party." Appeals of death, not prosecution for murder, were involved in the Statute of Gloucester and they were later abolished during the reign of George III.
To the same effect is Sir Matthew Hale, Vol. 1 "Historia Placitorum Coronae" (1736), p. 425 et seq. Other common law writers also give the year and a day rule for murder as beginning with the stroke: Hawkins, Vol. 1 "Pleas of the Crown", Curwood ed. 1824, p. 91; Halsbury, Vol. 9 "Laws of England", Hailsham ed. 1933, § 734, p. 428; East. Vol. 1 "Pleas of the Crown", pp. 214, 343; 3 Chitty, Perkins ed. 1836, p. 722; 3 Stephen "History of Criminal Law of England", p. 7; 1 Russell on Crime, Turner 10th ed. 1950; Perkins on Criminal Law, Univ. Text Book Series, 1957, p. 605.
Only one writer throws doubt on the doctrine that the year and a day rule runs from the stroke in prosecutions for murder and from the death in appeals of
death. This is Sir Edward Coke, 3 "Institutes of Laws of England", Chapter VII. On page 47 he states the rule as follows: "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice forethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, &c. die of the wound, or hurt, &c. within a year and a day after the same."
Then at page 53 this occurs: "But seeing the year and day in the case of murder and homicide, must be accounted apres le fait, after the deed, if a man be stricken or poisoned, etc. the first day of January, and he dieth of that stroke or poison the first day of May, whether shall the year and day be accounted after the stroke or poison given, or after the death? and it shall be accounted after the death, for then the man was murdered, and not after the stroke or poison given, &c. both in the indictment at the suit of the king, and in the appeal at the suit of the party. And so it hath been often adjudged..." (Emphasis added.)
This is the only instance in our research where the rule is said to run from the death both in public prosecutions for murder and in private appeals of death.
In the United States whatever confusion there may have been was put at rest by the Supreme Court in Louisville E. & St. L.R.R. Co. v. Clarke, 152 U.S. 230 (1894), 14 S. Ct. 579, where Mr. Justice HARLAN said: "Ought we to allow this obvious construction of the statute to be defeated by any rule recognized at common law as controlling upon an inquiry as to the cause of death in cases of murder, appeals of death, or inquisitions against deodands?
"In cases of murder the rule at common law undoubtedly was that no person should be adjudged, 'by
any act whatever, to kill another, who does not die by it within a year and a day thereafter, in computation whereof the whole day on which the hurt was done shall be reckoned first.' 1 Hawk, P.C. c. 13; 2 Hawk, P.C. c. 23, § 88; 4 Bl. Comm. 197, 306."
Taking up appeals of death, the Court went on, quoting from Comyn, 2 Inst. 320, tit. "Appeals", D: "By the statute of Gloucester, 6 Edw. I, c. 9, an appeal shall not abate by want of fresh suit, if brought in a year and a day after the fact done; which statute is, by construction, restrained to an appeal for the death of a man. And, therefore, an appeal upon the death of a man may be within the year and day, though there be not any fresh suit; within a year and a day after the death, though the blow was given before."
From this we conclude that in prosecutions for murder the year and a day rule runs from the time the fatal blow was given or the cause of death administered, and that this rule, so interpreted, was part of the common law of England in and before 1776. However, whether the rule theretofore had become part of the law of the Commonwealth is unnecessary for us to decide because we are of opinion that it is not part of the definition of murder but only a rule of evidence or procedure.
The Supreme Court of the United States, in the Clarke case, said: "In prosecutions for murder the rule was one simply of criminal evidence."
Among the States only a few have classified the rule as being one of evidence, procedure, or pleading, on the one hand, or as being part of the definition of murder or as an essential element of it or as a matter of substance, on the other. In the following cases the court has explicitly held the rule to be one of evidence or procedure: People v. Clark, 106 Cal. App. 2d 271, 235 P. 2d 56 (Cal. 1951); Head v. State, 68 Ga. App. 759, 24 S.E. 2d 145 (1943); Elliott v. Mills, 335 P. 2d 1104
(Okla. 1959); Nevada v. Huff, 11 Nev. 17 (1876). In Head v. State, supra, (68 Ga. App. 759), the Court of Appeals of Georgia said: "However, the question before us is not one of offense, but one of procedure and evidence...
"The courts of all the States that have dealt with the question... have with one accord held that unless death results within a year and a day from the date of the infliction of the mortal wound it is not criminal homicide.... The reasoning followed by the courts in the majority of the jurisdictions will be found well expressed in State v. Dailey, 191 Ind. 678, 134 N.E. 481, 20 A.L.R. 1006, supra.... For decisions of other States following the majority view see Howard v. State, 24 Ala. App. 512, 137 So. 532; Roberts v. State, 17 Ariz. 159(2), 149 P. 380; Kee v. State, 28 Ark. 155; People v. Kelly, 6 Cal. 210; State v. Bantley, 44 Conn. 537, 26 Am. Rep. 486; People v. Corder, 306 Ill. 264, 137 N.E. 845; Epps v. State, 102 Ind. 539, 1 N.E. 491; Rose v. Commonwealth, 156 Ky. 817, 162 S.W. 107; State v. Conley, 39 Me. 78; Commonwealth v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L.R.A., N.S., 1019; State v. Keerl, 29 Mont. 508, 75 P. 362, 101 Am. St. Rep. 579; Debney v. State, 45 Neb. 856, 64 N.W. 446, 34 L.R.A. 851; Bowen v. State, 1 Ore. 270; Hardin v. State, 4 Tex. App. 355; Clark v. Commonwealth, 90 Va. 360(4), 18 S.E. 440; State v. Phillips, 59 Wash. 252, 109 P. 1047; Ball v. United States, 140 U.S. 118, 11 S. Ct. 761, 35 L. Ed. 377."
To these can be added, to show the extent of the rule in the United States: State v. Moore, 196 La. 617, 199 So. 661 (1941); Chapman v. People, 39 Mich. 357 (1878); State v. Borders, 199 S.W. 180 (Mo. 1917); State v. Orrell, 12 N.C. (1 Dev. L.) 139, 17 A.D. 563 (1826); Percer v. State, 118 Tenn. 765, 103 S.W. 780 (1907); and State v. Spadoni, 243 P. 854, 137 Wash. 684 (1926).
Of these, the Louisiana, Michigan, and Washington cases speak of the rule as an essential averment or a substantive element, but no case within our research has built the rule into the definition of murder beyond the point indicated. A sample is the Chapman case from Michigan, where the court said: "The injury which causes death is never regarded as constituting the crime of murder or manslaughter. The death of the victim not only within a year and a day, but also within the same jurisdiction was the controlling element which distinguished the guilt of the assailant from a common assault. The time and place of death were always considered as necessary to be averred, and were required to be averred as independent of the averments of assault." (Emphasis added)
In practically all of the cases cited above and by the Georgia court the question for decision had to do with the sufficiency of the indictment, with reference to averments of the time and place of death. The existence of the year and a day rule in each State was the important thing to determine. One reason why the nature of the rule was not more frequently analyzed may be suggested by Blackstone's reference, infra to Coke's statement about murder as a description rather than as a definition. In a description one may expect to find together but unsorted not only the elements of the crime but the jurisdictional requirements of time and venue and date of death. These latter requirements affect only the right to prosecute, not the structure of the crime.
New York held, in People v. Brengard, 265 N.Y. 100, 191 N.E. 850 (1934), that the rule did not exist there because of a legislative history which showed an intent to abrogate the common law and because the New York Statute had an explicit definition of murder.
The following states have statutory requirements: Arizona, Arkansas, California, Colorado, Delaware,
Idaho, Illinois, Montana, Nevada, North Dakota, and Utah.
In Pennsylvania we have no statutory definition but we have taken the Blackstonian definition as our own: Commonwealth v. Redline, 391 Pa. 486 (1958), 137 A.2d 472, saying that it was substantially the one adopted in Commonwealth v. Drum, 58 Pa. 9 (1868), and uniformly applied thereafter. Redline reads, at page 493: "A felonious homicide (i.e., murder) occurs when a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign with malice prepense or aforethought, express or implied: see IV Blackstone, Commentaries, p. 195; 1 Warren, Homicide, Sec. 63; 1 Wharton, Criminal Law, Sec. 419 (12th Ed.)" In Blackstone these words are preceded by the statement: "Murder is therefore now thus defined, or rather described, by Sir Edward Coke." There is no mention of the year and a day rule. Blackstone waits for two pages before mentioning it, and then says, at page 197: "In order also to make the killing murder, it is requisite that the party die within a year and a day after the stroke received, or cause of death administered." The rule cannot, therefore, be said to be part of the definition of murder, either in Blackstone or in Pennsylvania.
Nor do we see any reason in principle for reading Blackstone's addendum into the body of his definition. Stephen, Vol. 3 "History of the Criminal Law of England", page 7, called the year and a day rule "an arbitrary rule", and Perkins, Criminal Law (1957), page 605, called it "a purely mechanical test which has been handed down from ancient times." Halsbury, in his "Laws of England" (Hailsham Ed.), Vol. 9, § 734, p. 428, said: "It is an irrebuttable presumption of law that the death is attributable to some other cause and the person who inflicted the injury is not punishable for murder or manslaughter."
A good reason for the rule appears in Warren on Homicide (1938), Vol. 1, § 60, where the author says, quoting Coke: "... if the person alleged to have been murdered 'die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke, or poison, etc., or a natural death, and in case of life, a rule of law ought to be certain.'"
The rule does not change the legal concept of the facts of the case but only prevents process being had upon them under certain conditions. It should not be considered part of the definition of the crime any more than should the rule of venue: it is no less murder that prosecution of it may be had in county A but not in county B. It is clear, from Coke's and Warren's statement above, that the reason for the rule lay in the primitive state of medical knowledge at the time, or it may have been, as Judge GORDON suggests in Evaul, that it was designed to mitigate the rigor of the old law that exacted a life for murder and manslaughter indiscriminately.
We can take judicial notice of the far advance since 1776 of scientific crime detection and of scientific medicine. We are not dealing with any of the basic and living rights of a defendant, like the right to confront his accuser, the right to be presumed innocent, or the right to due process of law. A rule becomes dry when its supporting reason evaporates: cessante ratione legis cessat lex. There is now no more reason for a rule of a year and a day than there is for one of a hundred days or a thousand and one nights. The rule, as the New York Court of Appeals said in People v. Brengard, supra (265 N.Y. 100), is an "arbitrary span of time which was fixed by the common law", and this was because of the limited medical knowledge of the times.
A modern rule should be based on causation in the light of current knowledge. Society is free to prosecute murders without a statutory limitation, and it is possible
that evidence and witnesses may be lost during a long interval between crime and trial. It is therefore not a strange idea to put no restriction of time upon the death of the victim and to require only proof of causation of conventional quality at the trial.
If the common law cannot change it cannot live. In Commonwealth v. Hess, 148 Pa. 98 (1892), we said: "If the great mass of legal principles, which has descended to us under the name of the common law, were composed only of iron-clad rules, it would be wholly unsuited to the present age and generation, and the great changes which have taken place, not only in the volume of business, but in the mode of conducting it. We are constantly applying the accepted principles of the common law to new phases and modes of doing business. This is a necessity, alike dictated by common sense and the necessities of trade..."
And in Jackman v. Rosenbaum Co., 263 Pa. 158 (1919), 106 A. 238; affirmed 43 S. Ct. 9, 260 U.S. 22, we said: "The fundamental principles of the common law, while liable to expansion, are in essence unchangeable, but their applicability to given conditions necessarily varies according to changes wrought by usage or statutory enactment; and, pursuing this thought, what today is a trespass, may, by development of law, not be so tomorrow...."
In Nesbit v. Riesenman, 298 Pa. 475 (1930), 148 A. 695, we said: "It is urged that in holding that a business, lawful in itself, may become a nuisance per se, we changed the common law, and that the legislature has the sole power to do this. We are not able to follow appellant's argument. The function of determining whether a rule of the common law exists, and what it is, lies solely with the court, as does also the question whether given conditions offend that law."
Our conclusion is that we may change a common law rule of evidence without being guilty of judicial legislation
and abolish it when we are aware that modern conditions have moved beyond it and left it sterile.
In People v. Legeri, 239 App. Div. 47, 266 N.Y.S. 86 (1933), the Court said: "Great advances have been made in medicine and surgery, and the doubt that the blow was the cause of death, when the latter ensued a year and a day after the former, has, in large measure, been removed. Frequently, there is now light where once there was darkness."
CONCURRING OPINION BY MR. JUSTICE BELL:
Defendant-appellant was indicted on two bills, one for murder and one for manslaughter. Both indictments allege that on or about September 21, 1958, in Philadelphia County, Roy Ladd, with force and arms, feloniously, wilfully and with malice aforethought, assaulted Dorothy Pierce and wilfully and with malice aforethought, killed and murdered her; and in another count charged that Roy Ladd feloniously, wilfully and with malice aforethought, gave Dorothy Pierce a mortal wound from which mortal wound she died on November 1, 1959. Defendant moved to quash the indictments because death occurred more than a year and a day after the stroke, and consequently he could not, under the common law definition of murder, be guilty of murder or manslaughter. The court below overruled the motion and defendant appealed.
We are all agreed that the crucial question is whether the year and a day rule is part of the present law of Pennsylvania. Mr. Justice BOK and Mr. Justice MUSMANNO have made an exhaustive review of common law murder.*fn1 I agree with Justice BOK's conclusion,
but I reach that conclusion by a very different route. From my examination of the authorities I am convinced that the year and a day rule was, at common law, part and parcel - and an absolutely essential indispensable part and parcel - of the substantive law of murder: Statutes of Gloucester, 6 Edward I, Ch. 9 (1278); Sir Edward Coke, Lord Chief Justice of England, 3rd Institutes of Laws of England, Ch. VII, page 52 (Circa 1620); IV Blackstone's Commentaries, Ch. 14, page 197; Hawkins "Pleas of the Crown", Vol. 1, 8th Ed. (1824), Ch. 13, § 9, page 93; Stephens' History of the Criminal Law of England, Vol. 3, pages 7, 8; Russell's Law of Crimes, 7th Ed., page 690; Halsbury's Laws of England, Vol. 9, 2nd Ed., § 734, page 428; Chitty, The Criminal Law, Vol. 3, page 276; Wharton's American Criminal Law, ...