(concurring). We concur in the dismissal of the complaint charging the defendant with murder. We would, however, in reaching that result, retain the "year and a day” rule.
I
The year and a day rule is so ancient that it is unlikely that anyone can say with confidence how it came to be part of the law and why it has survived as long as it has. It may, indeed, be based in part on, and have survived in part because of, the uncertainty of medical judgments regarding cause and effect. But it is as likely that the real root of the rule is something that is unrelated to the rationale advanced by the majority. It has been observed that rules of law often are adopted *402for reasons unrelated to the reasons which may justify the retention of the rule by subsequent generations.1
It misfocuses the inquiry to postulate a reason for this rule and then to say that reason no longer obtains and therefore the rule should no longer be retained without considering whether the rule serves some other purpose. Before discarding this rule, the Court should consider the potential consequences of abolition of the rule and whether there may be other reasons why it should be retained. What are the advantages and disadvantages of eliminating the rule? Will abolishing the rule make things better or create other problems that perhaps are as difficult as, or more difficult than, those which result from its retention?
II
While medical science has most assuredly advanced in the hundreds of years since the rule first became part of the common law, problems of proving or establishing with assuredness whether a death was caused by wounds persist. Despite the progress of medical science, uncertainty about whether wounds were the cause of death increases with the passage of time and medical opinions will *403differ. The prosecutor will present medical testimony that death was caused hy the wounds. The defendant will generally offer medical testimony that the wounds did not cause death. Because, where the death occurs a year or years after the wounds, there will often or generally be an honest difference of opinion regarding the cause of death, there is still a need for some time limit as an element of the offense, be it this rule or another.
Ill
We believe that in addition to its cause and effect justification, the year and a day rule reflects recognition that murder is different from other offenses in that almost every other offense is completed at the time of the trespass and cannot evolve with the passage of time into another offense. An accused charged with robbery, larceny, arson, or rape commits the offense, if at all, within a relatively short period of time. So too with an assault which does not result in death. But injuries can result in death hours, days, months, or years later.
Apart from the difficulty of establishing cause and effect with assurance, common-law judges may have thought the question whether the assailant should be exposed to prosecution for murder should be resolved within some period of time so that it will be clear once and for all whether in the eyes of the law the aggravated offense has or has not been committed.
The concept of law proceeds on the assumption that rights and responsibilities are determinable at some point. A rule of law which fails to provide such definition fails to provide the certainty that it *404should seek to provide. The need for repose, for certainty in the affairs of men, requires that the criminal responsibility of the assailant should be established once and for all at some time. Without a time limit, a year and a day, two years and two days, five years and five days, the prosecutor can be importuned to prosecute, and the assailant can be subjected to criminal prosecution. Common-law judges may have seen this as unwise and unfair both from society’s point of view and the accused’s point of view. In all events, it is unwise and unfair to institute such open-ended liability.
It begs the question to say that there is no statute of limitations on prosecutions for murder. Heretofore, it has not been murder unless the victim dies within a year and a day. The year and a day rule is so ancient that the statutes providing no limitations for prosecutions of murder were clearly passed with reference to that concept. If it was the legislative purpose to overrule the year and a day rule, that legislative intent has not yet been perceived nor declared even in the opinion of the Court.
IV
Abolition of the year and a day rule is said to further the state’s interest in the prosecution of murderers. However, this interest is furthered little, if any, by the rule’s abolition.
In Michigan, first-degree murder carries a mandatory life sentence.2 Second-degree murder is punishable by any term of years or life imprisonment, at the discretion of the court.3 A charge of assault with intent to murder carries with it the same *405range of punishment as second-degree murder.4 If the victim of an assault does not die, a defendant can be charged with and found guilty of assault with intent to murder and sentenced to life imprisonment. All the facts surrounding the crime, except the victim’s death, are available to the jury and judge after the assault. The state’s interest in punishing persons who commit murderous assaults is enhanced little, if at all, by the rule’s abolition.
Weighing against the state’s interest is the sword of Damocles raised by the rule’s abolition:
"If there is one thing which the criminal law must be, if it is to be recognized as just, it must be specific and definitive. To compel a person to go through life with a potential murder charge hanging over his head when he is ready and available to be tried on any immediate charge comes close to violating [his constitutional rights]. Commonwealth v Ladd, 402 Pa 164, 200; 166 A2d 501 (1960) (Musmanno, J., dissenting).
With the abolition of the rule, the specter of prosecution for murder will loom over persons whose actions might be said to have caused a death an indeterminate number of years after the assault.
V
Because the state’s interests are advanced little, if at all, by the abolition of the year and a day rule and its abolition exacerbates problems of proof regarding causation and does not secure a *406defendant’s and society’s repose interest, we would retain the rule.
Kavanagh, J., concurred with Levin, J. Riley, J., took no part in the decision of this case."A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.” Holmes, The Common Law, p 5 (1881) (Boston: Little, Brown & Co, 1938).
See MCL 750.316; MSA 28.548.
See MCL 750.317; MSA 28.549.
See MCL 750.83; MSA 28.278.