People v. Stevenson

• Decision Date: 23 December 1982
• Docket Number: Docket No. 66123,No. 11,11
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ross STEVENSON, Defendant-Appellee. Calendar416 Mich. 383, 331 N.W.2d 143
• Court: Michigan Supreme Court

Page 143

331 N.W.2d 143

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ross STEVENSON, Defendant-Appellee.

Docket No. 66123.

Calendar No. 11.

416 Mich. 383, 331 N.W.2d 143

Supreme Court of Michigan.

Argued Oct. 14, 1981.

Decided Dec. 23, 1982.

David H. Sawyer, Kent County Pros. Atty., Carol S. Irons, Chief Appellate Atty., Barbara J. Crozier, Research Asst., Grand Rapids, for plaintiff-appellant.

Patrick C. Bowler, Kent County Office of the Defender, Grand Rapids, for defendant-appellee.

RYAN, Justice.

In this case we are required to decide the validity of the rule that a murder conviction may not be obtained if the victim of the homicide does not die within a year and a day after the assault.

We hold that the "year and a day" rule is part of the common law of this state; that the rule is hereby abrogated; and that the abrogation of the rule should not, and will not, be given retroactive effect.

On December 15, 1976, defendant Ross Stevenson attempted an armed robbery of the Registrar's Office of Aquinas College in Grand Rapids, Michigan. It appears that while the robbery was in progress the victim attempted to prevent the crime by jumping on the defendant from behind. A struggle ensued during which two shots were fired, one or both of which struck the victim in the abdomen. The perpetrator escaped without completing the robbery. On December 17, 1976, the defendant was arrested and charged with armed assault with intent to rob and steal, contrary to M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, as well as assault with intent to murder, contrary to M.C.L. Sec. 750.83; M.S.A. Sec. 28.278.

The prosecuting attorney and the defendant subsequently entered into a plea bargain under which the charge of assault with intent to murder arising out of the shooting would be dismissed in exchange for the defendant's plea of guilty to the charge of assault with intent to rob. On February 18, 1977, the defendant was convicted upon his plea of guilty of the charge of assault with intent to rob while armed. The charge of assault with intent to murder was dismissed. Although the defendant could have been sentenced to life imprisonment, on April 15, 1977, he was sentenced instead to a prison term of not less than 6, nor more than 15, years, with appropriate credit for time already served.

Meanwhile, the shooting victim's apparent recovery from the gunshot wound proved to be illusory. On December 19, 1977, 369 days after the wound was inflicted, the victim died. An autopsy was performed in which the physician found that the cause of death was infection and hemorrhage resulting from the gunshot wound which had been inflicted over 12 months earlier.

On February 1, 1978, a complaint and warrant were issued against the defendant charging him with first-degree felony murder. On March 23, 1978, the district judge granted the defendant's motion to quash the complaint and warrant for the reason that the prosecution was barred by the common-law "year and a day" rule. The prosecutor appealed this dismissal to the circuit court and, in an order dated July 12, 1979, the circuit judge affirmed. The prosecutor appealed to the Court of Appeals, which affirmed in a published opinion. 101 Mich.App. 61, 300 N.W.2d 449 (1980). We granted leave to appeal. 410 Mich. 921 (1981). We affirm.

I

The first argument raised by the prosecutor on appeal is that the Michigan Supreme Court has never "adopted" the year and a day rule. In Chapman v. People, 39 Mich. 357, 360 (1878), Chief Justice Campbell wrote:

"From the earliest history of the common law, all homicides have been regarded as composed of two distinct elements, neither of which has been allowed in theory or in legal practice to merge the other. 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.)

Although the prosecutor correctly characterizes this summary of the common law as obiter dictum, since the holding in Chapman was that a fatal variance existed between an indictment which alleged an assault and immediate death in Meridian Township, Ingham County, and proofs which showed a delayed death in Lansing 15 days later, ¹ his argument misses the point. In Michigan, the common law prevails except as abrogated by the Constitution, the Legislature, or this Court. Mich. Const.1963, art. 3, Sec. 7; People v. Aaron, 409 Mich. 672, 722-723, 299 N.W.2d 304 (1980); People v. Duffield, 387 Mich. 300, 308, 197 N.W.2d 25 (1972). The prosecutor has failed to cite any provision of the Constitution, any statute, or any decision of this Court abrogating the year and a day rule and our research satisfies us that the rule has not been abrogated in Michigan.

Unlike the doctrine of felony murder, which was of "questionable origin" (Aaron, 409 Mich. p. 689, 299 N.W.2d 304) and may have been part of the common law "only of Sir Edward Coke" (Aaron, p. 695, 299 N.W.2d 304), the year and a day rule is well established within the tradition of the common law, dating back as early as 1278. ² In rejecting the claim that the year and a day rule applied to limit civil liability under the Indiana wrongful death act, the United States Supreme Court noted in Louisville, E. & St. L.R. Co. v. Clarke, 152 U.S. 230, 239, 14 S.Ct. 579, 581, 38 L.Ed. 422, 424 (1894):

"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 Hawkins, Pleas of the Crown, ch 13; 2 Hawkins, Pleas of the Crown, ch 28, Sec. 88; 4 Blackstone, Commentaries, pp 197, 306. The reason assigned for that rule was that 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.' 3 Coke, Institutes of the Laws of England, p 53."

We are satisfied that the district judge, the circuit judge, and the Court of Appeals all correctly held that under the existing common law the prosecution of this defendant was barred by the "year and a day" rule.

II

This Court has often recognized its authority, indeed its duty, to change the common law when change is required. See Aaron, supra; Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); Serafin v. Serafin, 401 Mich. 629, 258 N.W.2d 461 (1977); Beech Grove Investment Co. v. Civil Rights Comm., 380 Mich. 405, 157 N.W.2d 213 (1968); Myers v. Genesee County Auditor, 375 Mich. 1, 133 N.W.2d 190 (1965). Counsel for defendant argues, however, that this Court lacks the power to change the common law so as to enlarge the scope of criminal liability and cites In the Matter of Lamphere, 61 Mich. 105, 27 N.W. 882 (1886), as authority for that claim. A careful reading of Lamphere discloses, however, that no such proposition can fairly be implied from anything written there. The Court in that case merely held that the defendant's sentence was too uncertain and indefinite as to the time of its commencement to stand. The Court then went on in obiter dicta to suggest that the Legislature should consider legislation to resolve the practical difficulties associated with consecutive sentencing. What is more important is that no limitation upon this Court's authority to "enlarge" common-law criminal liability appears in Const.1963, art. 3, Sec. 7, or can be fairly implied from its language:

"Sec. 7. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed."

The suggestion that crimes can only be defined by statute is not well taken, particularly in light of the fact that, in Michigan, murder is defined by the common law and not by statute. Aaron, 409 Mich. p. 713, 299 N.W.2d 304. If common-law crimes could only be contracted, not expanded, this would tend to slow needed development of the common law, since once the definition of a crime was narrowed, as in Aaron, the Court would lack the power to reverse itself and "expand" liability by readopting, for example, the felony-murder doctrine. Such a "one way" power would unduly and unnecessarily retard the development of the common law in both directions, and we therefore refuse to endorse it.

Recognizing that this Court has the authority to abolish the year and a day rule, the question remains whether the rule has outlived its usefulness and should be abolished. The original rationale for the rule was probably tied to the inability of 13th Century medicine to prove the cause of death beyond a reasonable doubt after a prolonged period of time:

"If he died 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 the case of life, the law ought to be certain." 3 Coke, Institutes of the Laws of England, p 52.

Even if expert medical testimony concerning causation had been available at that time it would not have been heard, since in the early English courts the jury reached the verdict upon their own knowledge and not upon the testimony of witnesses having personal knowledge of the facts and expert opinion testimony as is the case today. 65 Dickinson Law Review 166, 170 (1961), citing Thayer, Evidence, p 174 (1898).

The advances of modern medical science, by extending life and by providing strong evidence of the cause of death, have undermined the...