concurring. The year and a day requirement has always been a substantive element of the crime of murder in this State, as the majority recognizes, and should have been applied to bar prosecution of this defendant for murder. Therefore, I concur in the judgment that the murder indictment should be dismissed and the conviction and sentence for assault with intent to kill reinstated. However, I part company with the majority when they eliminate the year and a day rule and substitute in its place a causation principle unlimited in time. I would defer to legislative action.
At common law, death within a year and a day was the controlling element which distinguished the crime of murder from that of assault. Ball v. United States, 140 U. S. 118, 134, 11 S. Ct. 761, 767, 35 L. Ed. 377, 384 (1890). Although the precise origins and purposes of the rule are obscure, see Cooley, “Constitutional Law” in 1960-1961 Survey of Pennsylvania Law, 23 U. Pitt. L. Rev. 263 (1961), it most probably reflects an early judgment that proof of causation for the crime of murder should not be unduly speculative. See III Coke, Inst., c. vii at 53 (4th ed. 1670) (“in case of life the rule of law ought to be certain”).
Today, of course, it is easy to condemn the year and a day period as anachronistic and unjust. But, as the colloquy among my colleagues demonstrates, there is room for debate over what its substitute should be. Traditionally, such questions have been left to the Legislature, which — within constitutional limits — has the power to declare what conduct shall be criminal, to set the punishment for crimes, and to undertake substantive revisions of the criminal law.
*258The New Jersey Legislature is now in the process of revising and codifying New Jersey’s criminal law, including murder. See proposed New Jersey Code of Criminal Justice approved by the Senate (S. No. 738) and Assembly (A. No. 3282).1 The Code abolishes common law crimes, Title 2C, § 1-5. It defines murder in terms causing the death of another, Title 2C, §§ 11-2 and -3, and defines causal relationship between the conduct and the result. Section 2-3 of Title 20 states tWt “[c]onduct is the cause of a result when (1) [i]t is an antecedent but for which the result in question would not have occurred; and (2) [t]he relationship between the conduct and result satisfies any additional requirements imposed by the code or by the law defining the offense.” The section then continues on to delineate causal relationship factors dependent on the nature of the offense. Title 2C, § 2-3(b), (c), (d) and (e).
Under all these circumstances, I am unable to perceive any compelling reason why this Court should not await final legislative action. The courts in most jurisdictions that have considered this question have deferred to their respective legislatures. State v. Brown, 21 Md. App. 91, 318 A. 2d 257 (Ct. App. 1974); Elliott v. Mills, 335 P. 2d 1104 (Okl. Crim. App. 1959); Head v. State, 68 Ga. App. 759, 24 S. E. 2d 145 (Ct. App. 1943); State v. Dailey, 191 Ind. 678, 134 N. E. 481 (Sup. Ct. 1922); State v. Moore, 196 La. 617, 199 So. 661 (Sup. Ct. 1940).2
I am aware of no case in which the highest court of a state, where a year and a day was a constituent element of the crime of murder, has abolished that criterion solely on the basis of inherent judicial authority to conform the eom-*259mon law to modern conditions. I do not mean to detract-from our traditional power to revise and abandon common law principles when they are outdated and no longer serve justice or our obligation to scrutinize legislation or constitutional provisions in the light of their purposes. However, when the common law rule under examination is a substantive component of a major crime, when the selection of its substitute calls for policy determinations that are legislative in nature, and when the Legislature is in the process of making that decision, I believe we should stay our hand. Eor these reasons,' I would adhere to the rule.
Justice Sullivan joins in this opinion'.
There are some differences between the Senate and Assembly versions of the proposed code but they do not affect the sections referred to in this opinion.
Subsequently, the Louisiana legislature enacted the year and a day requirement in its code. La. Rev. Stat. 14:29 (1974).