State v. Brown

• Decision Date: 23 April 1974
• Docket Number: No. 677,677
• Citation: 318 A.2d 257,21 Md.App. 91
• Parties: STATE of Maryland v. David Wilson BROWN.
• Court: Court of Special Appeals of Maryland

Page 91

21 Md.App. 91

318 A.2d 257

STATE of Maryland v. David Wilson BROWN.

No. 677.

Court of Special Appeals of Maryland.

April 23, 1974.

David B. Allen Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Joseph Wase, Asst. State's Atty., for Baltimore City, on the brief, for appellant.

Stephen E. Harris, Baltimore, with whom was Paul M. Sandler, Baltimore, on the brief, for appellee.

Argued before ORTH, C. J., and DAVIDSON and MOORE, JJ.

ORTH, Chief Judge.

I

The administration of justice in this jurisdiction has its roots in the common law, for the People, in declaring their rights upon the founding of this State, asserted 'That the Inhabitants of Maryland are entitled to the Common Law of England, * * *.' Art. 5, Declaration of Rights, Constitution of Maryland. Thus, the common law of England en masse, as it existed in England on 4 July 1776, and as it prevailed in Maryland either practically or potentially, except such portions thereof as were inconsistent with the spirit of the Constitution and the nature of our political institutions, prevails today, unless changed by legislative enactment or judicial decision. McGraw v. State, 234 Md. 273, 199 A.2d 229; Lickle v. Boone, 187 Md. 579, 51 A.2d 162; State v. Buchanan, 5 Har. & J. 317; Latz v. Latz, 10 Md.App. 720, 272 A.2d 435.

At the common law, a rule usually referred to as the 'year and a day rule' was firmly established. It declared that the law will not recognized a homicide unless the death has resulted within a year and a day from the time of the act which is alleged to have caused the death. Perkins, Criminal Law (2d ed. 1969) 28. ¹ Blackstone stated: '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 * * *.' 4 Commentaries on the Laws of England 197. ² William Hawkins, Sergeant at Law, speaking 'Of Murder' in 1 Pleas of the Crown, ch. 13, § 9, said: 'Also it is agreed, that no person shall be adjudged by any act whatever to kill another who doth not die thereof within a year and a day after * * *.'

The rule is not a statute of limitations. A statute of limitations sets the time within which the prosecution can be commenced after the crime has been completed. The year and a day rule provides that the crime is not committed unless the death occurs within a year and a day after the accused's act. ³ 'In other words (in a criminal prosecution) death cannot be attributed to a blow or other harm which preceded it by more than a year and a day. In such a case the loss of life is attributed to natural causes rather than to the human act which occurred so long ago.' Perkins, Criminal Law (2d ed. 1969) 28. Thus, if death ensues more than a year and a day from the act of the accused, there is a conclusive presumption that the death was not caused by that act. On the other hand, if death occurs within a year and a day of the act, the rule does not bar a prosecution brought any time during the life of the offender. We are aware of no state upholding the year and a day rule which has a limitation on prosecution for murder.

Although the year and a day period was apparently arbitrarily set, the addition of a day may be explained by the ancient rule 'that, in criminal law, in reckoning a period from the doing of any act, the period was to be taken as beginning on the very day when this act was done.' Kenny, Outline of Criminal Law (4th ed. 1909) 140. Both Blackstone in 4 Commentaries on the Laws of England 197, and Hawkins in 1 Pleas of the Crown, ch. 13, § 9, said that in the computation of the period 'the whole day on which the hurt was done shall be reckoned the first.' Lord Coke explained the reason for the extra day: '(F)or regularly the law maketh no fraction of a day: and the day was added, that there might be a whole year at the least after the stroke, or poyson, etc. . . ..' 3 Coke, Institutes 53 (2d ed. 1648). ⁴

The reason for the rule is not definitely known. Clark & Marshall, Law of Crimes (7th ed. 1967) § 10.00 ascribed it to expediency. 'The common law rule is one of expedience, probably formulated because of medical difficulties encountered in proving cause of death when a considerable lapse of time intervened between an act or ommission, and final cessation of life.' This follows the reasoning of Lord Coke, who said, 3 Institutes 53 (2d ed. 1648): '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 a stroke or poyson, etc., or a natural death; and in case of life, the rule of law ought to be certain'.' Kenny, Outlines of Criminal Law (4th ed. 1909) 140 thought that the rule 'was a wise precaution in view of the defectiveness of medical science in mediaeval days.' Perkins suggested that the 'limitation dating back to antiquity, was dictated by difficulties of proof * * *.' Criminal Law (2d ed. 1969) 29. It seems likely that the rule was created as a safe-guard against murder convictions when the cause of death was uncertain and medical conjecture was the only means available for determining it. But, regardless of the reason for its creation, the rule has had overwhelming support in the United States. The courts of those states who have considered it, with the exception of New York, ⁵ and Pennsylvania, ⁶ have recognized and applied the rule. The Supreme Court of the United States recognized the rule in Louisville, E. & St. L. R. R. v. Clarke, 152 U.S. 230, 14 S.Ct. 579, 38 L.Ed. 422, and discussed its history at length. At least eleven states have statutes expressly promulgating the rule, and judicial decisions, holding that legislative silence does not abrogate the rule, but rather is evidence that it should persist, have introduced the rule in states without statutory provisions. See 20 A.L.R. 1004; 37 North Dakota L.Rev. 377 (1961). Perkins found that the rule remains in full force in most states. Criminal Law (2d ed. 1969) 29.

The cases are about equally divided on whether the rule is a substantive part of the definition of murder or whether it is a rule of evidence. ⁷ In any event, we subscribe to the view set out in a note entitled 'The Abolition of the Year and A Day Rule: 'Commonwealth v. Ladd', 65 Dickinson L.Rev. 166 (1961) at 169:

'When a court is abolishing a rule of law, it is submitted that the proper exercise of judicial power should be explained and supported by broad policies concerning the criminal law rather than narrow determinations resting on very technical bases. The aim and purpose of the criminal law is to provide adequate protection for society and simultaneously assure justice for the individual accused. A balance between the two requires a determination which necessarily varies with the environment and background of the particular individual making the inquiry. For this reason it seems that alteration or modification of the criminal law (other than a mere procedural rule) should be made by the legislature where a more representative determination may be made.'

That change, if advisable, should be by legislative action, was suggested by Clarke and Marshall, Law of Crimes (7th ed. 1967) § 10.00: 'Legislative changes of this arbitrary rule can be undertaken consistent with modern advances in medical science.' Perkins in his Criminal Law (2d ed. 1969) 29, although agreeing that change in the rule should be by statute, added the caveat that 'before it is eliminated by legislation a careful study should be made to determine whether or not it serves some other useful purpose.'

It is patent that major advances have been made in medical science and that improvements have been attained in scientific crime detection. The trier of fact need not, as did the early English juries, find a verdict upon its upon knowledge or merely give expression to the community conviction on the question, but today may place reliance on the testimony of expert witnesses. But even so, we are not prepared to say that the rule of a year and a day is presently anachronistic, or that such period, after which death is conclusively presumed to result from natural causes, is no longer realistic. Abolition of the rule may well result in imbalance between the adequate protection of society and justice for the individual accused, and there would remain a need for some form of limitation on causation.

It follows from what we have said that, although there does not appear to be a case in this jurisdiction applying the common law rule, ⁸ we think that it is in full force and effect in Maryland. We so hold. It is evident from what we have said that we are of the opinion that if change is to be made in the rule it should be by the General Assembly because expression and weighing of divergent views, consideration of potential effects, and suggestion of adequate safeguards, are better suited to the legislative forum. ⁹

II

On 25 January 1973 a presentment and indictment were filed in the Criminal Court of Baltimore charging that David Wilson Brown (appellee) on 14 November 1970 'feloniously, wilfully and of deliberately premeditated malice aforethought did murder one Patsy Ann Brown.' On 15 May 1973 appellee filed a motion to dismiss the indictment, alleging primarily 'that the allocations contained in the Indictment * * * show on their face that the offense that is purportedly charged in that Indictment was abated at the time of the filing thereof, and, therefore, cannot constitute the basis for a criminal prosecution under the laws of the State of Maryland.' On 25 May the motion was heard in the Criminal Court of Baltimore. It was not disputed that the victim was injured by the act of appellee on 14 November 1970 and died on 13 September 1972. ¹⁰ Appellee relied on the year and a day rule in support of his motion. On 1 August 1973 the court granted the motion to dismiss...