The year-and-a-day rule: a common law vestige that has outlived its purpose.

AuthorRowe, Neil M.B.


In every sense--other than the strictly legal sense--there can be little doubt that Ralph Lynn Key caused the death of Brian Rollo. However, because Brian Rollo survived in a persistent vegetative state for nearly 18 months after being hit by a car driven by an intoxicated Ralph Lynn Key, Key could not be prosecuted for manslaughter in connection with the homicide. (1) The rule barfing Key's prosecution is a 730 year-old common law vestige prohibiting homicide prosecutions when the victim survives for more than one year and a day following the blow that eventually caused the victim's death. In Ex parte Key, the Alabama Supreme Court declined the opportunity to abrogate the "year-and-a-day rule", stating its firm adherence to stare decisis and its reluctance to invade the province of the Legislature. (2)

This article will discuss the historical development of the rule, the circumstances that have lead to its widespread abrogation, and the current state of the rule in the other states. This article will then discuss the reasoning of the Alabama Supreme Court in Ex parte Key. In this context, this article will review other situations in which the Alabama Supreme Court has abrogated or modified common law rules and has departed from stare decisis. In conclusion, the author will argue that the Alabama Supreme Court should have abrogated the year-and-a-day rule in Ex parte Key, that it should do so when next faced with the issue, or that, failing action by the Supreme Court, the Alabama Legislature should abolish the rule in order to bring Alabama law into conformity with the laws of our sister states and consistent with the circumstances that have made the rule obsolete.


A review of the origin of the rule and its subsequent transformation adds to the context for an evaluation of the rule's continued viability. Accordingly, this section will explore the rule's origin as a rule of limitations applied to private actions in thirteenth-century England. The rule's history will then be traced through its migration into American law and transformation into a substantive element of homicide offenses.

The Rule's English Origin

It cannot be disputed that the year-and-a-day rule is deeply rooted in the common law. The rule came into existence in 1278 as part of the Statute of Gloucester (3) and was intended as a statute of limitations governing the time in which an interested person might bring a private cause of action known as "appeal of death." (4) The "appeal of death" was a vindictive private action brought by an aggrieved person and derived from the Germanic custom of "weregild," the historical precursor of the wrongful death action. (5) Although the "appeal of death" was abolished in 1819, (6) the year-and-a-day rule had earlier become the law governing criminal prosecutions so that a homicide case would be barred unless the victim died within a year and one day of the injury. (7) By statute, the rule was one of limitation and ran from the death of the victim. However, in its transformed state, the rule ran from the infliction of the mortal wound. (8)

Adoption of the Year-and-a-Day Rule in the United States

The Supreme Court first applied the year-and-a-day rule in Ball v. United States. (9) In that case, the Court overturned the murder convictions of three men because the indictments against them failed to allege that the victim died within one year and a day from the attack. (10) In Louisville, E. & St. L. R. Co. v. Clarke, the Supreme Court again acknowledged the applicability of the rule to criminal prosecutions but declined to apply it in the context of a civil action for wrongful death damages. (11) Most American state courts have likewise broadly recognized the year-and-a-day rule. The Massachusetts courts recognized the rule as early as 1824, (12) and the North Carolina courts did so in 1826. (13) In many states, the courts held the rule to be in effect where the state in question had a statute or constitutional provision giving force to common law principles absent a statute to the contrary. (14) In Louisiana, the rule was held to apply even though the applicable statute specifically rejected the applicability of any common law crimes. Where the criminal code only pronounced murder to be a crime but did not define it, the court would look to common law definitions extant in the United States at large. (15) Nearly all of the jurisdictions applying the rule applied it as a part of the substantive definition of murder such that an indictment that failed to allege that the victim died within one year and a day from the injury was fatally defective. However, in Nevada the rule was held to a presumption and thus a rule of evidence. (16) At least one court has held that when the victim died more than one year after the injury, the defendant could not even be prosecuted for attempted murder since it was conclusively presumed that the injury caused by the defendant was not the cause of the victim's death. (17)


To properly evaluate the Alabama Supreme Court's decision in Ex parte Key and to address the continued viability of the rule in Alabama jurisprudence, it is necessary to review the rule's legal foundation in Alabama law and the role it has played in decisions of Alabama's appellate courts.

The Legal Foundation of the Year-and-a-Day Rule in Alabama

The year-and-a-day rule has appeared in reported decisions in Alabama since as early as 1931. (18) However, it was not until the Court of Criminal Appeals' decision in Key v. State that a court discussed the legal basis for its applicability in Alabama. In that opinion, the court discussed the long history of the rule, including its English origin and its migration to the United States. (19) In addressing the state's argument that the rule had been implicitly repealed by the adoption of the new Criminal Code of Alabama, the court quoted at length the Commentary to one of the introductory sections of the Criminal Code. (20) In that excerpted material and in Judge Shaw's concurrence, the Court first addressed the statutory basis for the year-and-a-day rule's application in Alabama law:

The common law of England, so far as it is not inconsistent with the Constitution, laws, and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the Legislature. (21) Similarly, the Alabama Supreme Court relied on this statute in concluding that (1) because the year-and-a-day rule was part of the common law of England, it became part of the common law of Alabama, and (2) it remains the common law of Alabama unless the Legislature has "altered or repealed it". (22) Thus, in 2003, when the Alabama courts were faced with the first serious challenge to the year-and-a-day rule--a rule developed in thirteenth-century England and recognized in American courts since the nineteenth century--we see the first explanation by an Alabama court of the rule's basis in Alabama law.

Application of the Year-and-a-Day Rule in Alabama

While the Alabama appellate courts have long recognized the existence of the year-and-a-day rule, it had not been the basis for the decision in any reported case in Alabama before the Supreme Court's decision in Ex parte Key. The Alabama Court of Appeals first recognized the year-and-a-day rule in dicta in a 1931 decision. (23) In Howard v. State, the court discussed the rule in the context of rejecting a defendant's claim that causation could not be proven reliably because the victim lived for three or four months after the blow. (24) This decision foreshadowed all of the other pre-Key decisions discussing the rule in that it did not present a question in which the court had to actually apply the rule as opposed to using it as contrast to support its decision on a related issue. Similarly, in Smith v. State, the court held that while the length of time between the fatal blow and the victim's death may be a factor in determining whether the two events are causally related, it usually is not the determining factor. (25) The court used the year-and-a-day rule as an illustration of the great length of time a victim may survive without negating the element of causation. (26)

In a different use of the year-and-a-day rule, the Court of Appeals again acknowledged the rule and held that an indictment that did not specifically state the date of death was not defective so long as there was no claim that the victim survived his wounding for more than a year and one day. (27) In other words, the court held that the law does not require a specific allegation that the death occurred within the required time, so long as there were no facts giving the indication that the rule was implicated.

The two most recent pre-Key Alabama decisions discussing the rule likewise did not have the rule as a basis for decision. However, the facts and analyses in those cases provide a preview of the problems caused by the rule.

In Woods v. State, it appears that the prosecutor, unwilling to urge the abolition of the rule, declined to prosecute the defendant for murder when the victim--having survived for over two years after a gunshot to the head and neck--died after two mistrials but before the defendant's third trial for attempted murder--after the victim had died from his injury. (28) The defendant was convicted of attempted murder in his third trial. (29) One of the central issues in the case was the admissibility of a police detective's hearsay testimony regarding the victim's prior identification of the defendant. (30) Following the attack, the victim was unable to breathe without assistance, and it was clear that his death was ultimately attributable to the brutal shooting by the defendant. However, because the victim's life was preserved for longer than one year, the defendant...

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