dissenting. Because of the mere fortuity that the unfortunate victim of this murder died one year and sixty-three days after being repeatedly shot, the Court has chosen to reward his assailant.1 Had the victim’s death been quick, the defendant’s culpability for the crime of murder would have been unquestioned. However, here, where his end was far more tragic, the conviction is reversed. The three bullets that hit him rendered the decedent a permanent quadraplegic, paralyzed from the neck down. He was unable to do anything for himself save talking and thinking. He was shuffled from hospital to nursing home and back, as various complications and injury-induced infections plagued his day-to-day existence. The victim watched helplessly as his life slowly ebbed away over an extended period of time. Yet, the majority rewards his assailant by dismissing his indictment for murder simply because of the length of time it took for the debilitating injuries caused by the shooting to extinguish the victim’s life. In essence, the majority allows the victim’s valiant struggle for survival, even in the face *262of life as an invalid, to inure to the benefit of the defendant. Allowing a cold-blooded assailant to escape a murder conviction for such a hyperteehnical reason mocks common sense and defies all rational notions of justice.
I agree with the per curiam opinion of the Court to the extent that it concludes that the “year and a day” rule was the heretofore prevailing common law rule in New Jersey. I also support the abolition of this now anachronistic rule and join in that part of Justice Clifford’s well-reasoned concurring opinion which cogently demonstrates the ludicrousness of having' any fixed time period as a substitute for the old rule. However, the only opinion to which I fully subscribe is that written by Judge Bischoff for the Appellate Division. 148 N. J. Super. 405 (1977).
Subjecting this defendant to a trial for murder is neither tantamount to prosecuting him under an ex post facto law nor violative of due process. It has been conclusively established that the constitutional provisions against ex post facto laws Apply only to legislative enactments and have no application whatsoever on judicial decisions. Marks v. United States, 430 U. S. 188, 191, 97 S. Ct. 990, 992, 51 L. Ed. 2d 260, 265 (1977); Frank v. Mangum, 237 U. S. 309, 344, 35 S. Ct. 582, 594, 59 L. Ed. 969, 987 (1915); In re Smigelski, 30 N. J. 513, 526 (1959). In Marks, supra, the Supreme Court observed that
The Ex Post Faoto clause is a limitation on the powers of the legislature . . . and does not of its own force apply to the Judicial Branch of government. * * * But the principle on which the clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty.
[430 U. S. at 191, 97 S. Ct. at 992, 51 L. Ed. 2d at 265]
This Court has also stated that the ex post facto clause “generally pertains only to legislative acts and not judicial decisions.” In re Smigelski, supra, 30 N. J. at 526. Yet even *263assuming the constitutional restriction applied, this defendant did not lack fair warning that his lethal act of firing several shots at a vital area of his victim’s body could subject him to a murder conviction if the wounds proved fatal.
Likewise, defendant’s attempt to mount a due process challenge to retroactive application of our overruling of the year and a day rule is unconvincing. The correct analysis on this point was supplied by the Supreme Court of Pennsylvania in Commonwealth v. Ladd, 402 Pa. 164, 166 A. 2d 501 (1960). The Pennsylvania court abolished the year and a day rule and applied the abolition retroactively to the defendant in that case. It aptly noted that .this ancient rule was essentially based on a judicial bar against the reception of evidence of death more than a year and a day after the assault. 166 A. 2d at 504, 506.
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 clear . . . that the reason for the rule lay in the primitive state of medical knowledge at the time.
[166 A. 2d at 506]
Moreover, when California extended the year and a day rule to three years and' a day, West’s Anno. Cal. Stat. (Penal) § 194, a defendant who committed a murder prior to enactment of the statutory extention was held to be subject to prosecution even though the victim died 21 months after the assault. People v. Snipe, 25 Cal. App. 3d 742, 102 Cal. Rptr. 6 (Ct. App. 1972). That court also correctly found that the year and a day rule was evidentiary in nature, 102 Cal. Rptr. at 8, so that its alteration did not affect the nature of the offense or the punishment proscribed for that offense.
The year and a day rule is not substantive in any true sense of the word. It was adopted because the science of medicine was not sufficiently advanced in Seventeenth Cen*264tury England that it could pinpoint an injury inflicted long before death as the clear cause of death. Yet, the unlawful killing of a human being was just as much murder then as it is now. The difference is that modern advances in medicine allow us to pinpoint the cause of death with far greater precision. The United States Supreme Court’s decisions have indicated that there is no constitutional infirmity to retrospective application of new evidence rules. See Splawn v. California, 431 U. S. 595, 97 S. Ct. 1987, 52 L. Ed. 2d 606, 613 (1977); Thompson v. Missouri, 171 U. S. 380, 18 S. Ct. 922, 43 L. Ed. 204 (1898) ; Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884).
The majority’s reliance on Bouie v. Columbia, 378 U. S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964) is misplaced. First, all the statements in that opinion pertaining to anything but the rendering of previously innocent conduct as culpable are mere dicta. Second, since no court in this state has ever before recognized the year and a day rule by statute or judicial decision, it is unimaginable that defendant relied on its existence in gauging his conduct. Third, the criminal law in New Jersey clearly proscribed the wrongful taking of a person’s life by another at all times pertinent to this case. Moreover, the Bouie dicta were solely concerned with due process violation in the context of a statute or court decision operating in an ex post facto manner. The most recent Supreme Court discussion of the ex post facto clause is found in Dobbert v. Florida, 432 U. S. 282, 297, 97 S. Ct. 2290, 2300, 53 L. Ed. 2d 344, 358 (1977), where the majority suggests that fair warning is the central value protected by a rule of non-retroactivity in criminal law. Dean Cooley has put the reliance issue in the context of the year and a day rule to rest for all time.
[T]here is no such problem here. The defendant in this case could not have so regulated his blows as to ensure that his victim would die a month after the year-and-a-day barrier came into existence, nor should due process afford him a right to try. If the court is convinced that the ancient rule has outlived whatever rational basis *265it once may have had, the asserted constitutional objections to saying so appear tenuous. Cooley, “Constitutional Law,” 23 U. Pitt. L. Rev. 263, 265 (1961).
Even the views of the dissenters in Dobbert, which focused on the further need to protect against arbitrarily and improperly motivated legislative action, 432 U. S. at 307, 97 S. Ct. at 2305, 53 L. Ed. 2d at 365, would not be contravened by retroactive application of our abolition of this rule.
Furthermore I find no New Jersey decision which would stand in the way of applying the abolition of the- year and a day rule retroactively. In State v. Nash, 64 N. J. 464, 471 (1974), Justice Clifford’s opinion for the Court noted that as a general rule the decision over whether to give retroactive effect to a holding is based on pragmatic considerations, such as examining whether
. . . (1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. This weighing process has generally been followed in New Jersey.
Retroactive application of our decision to this defendant would not be inconsistent with any of these considerations. It simply appears incongruous to cloak a mantle of protection around this defendant when he clearly committed the most heinous of crimes, a crime so abhorrent that it has no statute of limitations. State v. Zarinsky, 75 N. J. 101 (1977).
As we held in In re Quinlan, 70 N. J. 10, 44 (1976), “the law, equity and justice must not themselves quail and be helpless in the face of modern technological marvels presenting questions hitherto unthought of.” Three hundred years ago it may not have been clear beyond a reasonable doubt that a defendant caused the victim’s death when the decedent lived a year and sixty-three days after the assault. Today, in this case, it is clear. To permit this defendant to *266avoid a murder conviction would be contrary “to the common moral judgment of the community at large.” In re Quinlan, supra.
Perhaps the most ironic point of all is that if this offense had been committed three hundred years ago this defendant would have been convicted of murder and hanged. With the state of medicine at that time, nothing short of a miracle would have permitted a person shot in the places where this victim was hit to survive for a year and a day. Thus, modern medicine has prolonged the victim’s life and adherence to an archaic legal fiction has freed his killer.2 This is a result which I cannot countenance. I dissent.
Hughes, C. J., and Clifford and Handler, J. J., would abolish the rule prospectively; Sullivan and Schrfiber, J. J., would retain the rule; Conford, P. J. A. D., would modify it and Pashman, J., would abolish the rule retroactively.
For reversal — Chief Justice Hughes, Justices Sullivan, Clifford, Schreibee and Handler and Judge Conford— 6.
For affirmance — Justice Pashman — 1.
Uncontradicted testimony of the medical examiner clearly established that the underlying canse of the victim’s death was the gunshot wound to the cervical cord. He further stated that there was a direct causal relationship between the gunshot wound and decedent’s death. The fact that complications resulting from his debilitated condition may have precipitated his death is, under settled legal principles, irrelevant to defendant’s legal responsibility therefor.
The word free is used advisedly since we did reinstate defendant’s conviction for assault with intent to kill. But, the 5-7 year sentence he received for that crime has been largely served. As a result of this decision, a possibly dangerous recidivist will soon be turned loose.