Overview of State v. Jones


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Although I did not include the briefs that were filed in this case, there are a couple of things to point out about them. If you want to read the briefs they are available in the State Law Library in the Capitol Building.

The Briefs

Both Jones' and the State's briefs were filed before the decision in State v. Myers. Neither Jones nor the State argue that "malice" must be in the jury instructions for second degree murder. But the jury instructions are an issue in this case. Jones has one of the attorneys, Thomas Kenney from the Douglas County Public Defenders Office, that represented Cave in State v. Cave. Consequently the argument in Jones' brief tends to follow that in Cave; how does a jury distinguish between the crime of second degree murder and manslaughter upon a sudden quarrel?

Jones' brief points out the difference between second degree murder and manslaughter but doesn't specifically argue that the definitions are the problem." "a person commits manslaughter if he kills another intentionally upon a sudden quarrel." "a person commits second degree murder if he causes the death of a person intentionally but without premeditation." "As a result, second degree murder is distinguished from voluntary manslaughter by the latter's additional element of a sudden quarrel."

The Jury Instructions

Instead, Jones argues that Nebraska's pattern jury instructions are the problem because they require the jury to consider the crime of second degree murder first before they consider manslaughter. If the prosecution proves the killing was intentional the jury convicts you of second degree murder without ever considering whether or not there was a sudden quarrel. The problem seems pretty obvious. A person who has actually committed the crime of manslaughter upon a sudden quarrel can get convicted of second degree murder instead.

The State's Brief

The State argues that this "acquittal first step instruction" is the correct way to instruct the jury. With the "acquittal first step instruction" the jury first considers the crime of second degree murder before they consider manslaughter. Only if the jury finds the defendant not guilty of second degree murder can they consider the "lesser" charge of manslaughter. Again, the problem seems pretty obvious, a person who only committed manslaughter upon a sudden quarrel gets convicted of second degree murder.

Not The Important Issue

The "acquittal first step instruction" is a separate issue from the one we are looking at. The Jones Court decides that the "acquittal first step instruction" was not a problem because it did not require the jury to unanimously find the defendant not guilty of second degree murder before considering the charge of manslaughter. I don't agree with that decision but that is not the important issue in this case.

Changing the Law

Not content to leave the decision they made in Myers alone, the Court decides that the real problem is that "intent" is not an element of manslaughter, overruling State v. Pettit, 233 Neb 436, 445 N.W.2d 890 (1989). The Court says, "Since our statutes define manslaughter as a killing without malice, there is no requirement of an intention to kill in committing manslaughter." Where the Myers Court had tried to add the element of "malice" to second degree murder and argue that "malice" is what separated second degree murder from manslaughter, the Jones Court now tries to remove the element of "intent" from manslaughter and argue that "intent" is what separates those two crimes.

There are a number of constitutional problems with removing "intent" from the definition of manslaughter. Most of these problems are well described in a Creighton Law Review article; Intent As An Element Of Voluntary Manslaughter: State v. Pettit, 24 Creighton Law Review 583, Veronica L. Bowen, 1991.

Changing the Law Again

Jones overrules Pettit which overruled State v. Batiste, 231 Neb 481, 437 N.W.2d 125 (1989), which overruled the previous definition of manslaughter that had been around since 1873. As Ms. Bowen points out, the original 1873 manslaughter statute was a codification of the common law crime of both voluntary and involuntary manslaughter. Those definitions did not change in the new 1977 criminal code. The common law manslaughter, Nebraska's "sudden quarrel" manslaughter, had always required "intent" as an element. The Legislature's intent is clear on this point, therefore the Court is not free to change the definition of manslaughter.

It's The Constitution

In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240 (1952), the U.S. Supreme Court decided that when the Legislature codifies common-law crimes the element of "intent" will be presumed unless explicitly stated otherwise. See also, Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960). The Due Process Clause requires "intent" as an element unless certain criteria are met. The most important of these are that (1) the crime did not originate out of the common-law, (2) the penalty imposed is relatively slight, and (3) that the standard of conduct imposed is reasonable and can be reasonably and properly expected of persons.

The first two of these conditions are obviously not met by Nebraska's voluntary manslaughter crime. A simple example will show that the 3rd condition is also not met when "intent" is removed from the crime. For example, A and B were arguing and B begins to back out out of the room. Unknown to A or B, some third person has accidently left a loaded gun on the floor. B trips over the gun and it fires, killing A. The Jones decision removing "intent" from voluntary manslaughter would require a jury to convict B of manslaughter even though B was not to blame.

Ex Post Facto Too

The Jones Court's removal of "intent" would also be a violation of the ex post facto prohibition. The Ex Post Facto Clause of the U.S. Constitution, Article I §10, prohibits a state legislature from changing a criminal statute "after the fact" by removing an element of the crime, thereby making it easier to obtain a conviction. The U.S. Supreme Court has decided that when a Court, by judicial action, creates the effect of an ex post facto law, that Court violates the Due Process Clause as well. See, Marks v. United States, 430 U.S. 188, 97 S.Ct. 990 (1977).

The Decision

First, the Court discusses the facts of the case, then they recite the instructions given to the jury in this case. The instructions for 1st degree murder, 2nd degree murder, and manslaughter are listed verbatim. The Court then discusses Jones' claim that the jury instructions are at fault. They make a questionable decision that it is not the jury instructions that are at fault and then decide the real problem is the elements of the crime of manslaughter, overruling State v. Pettit. You can note at the end that Judge Shanahan did not participate in this decision (he wrote the Pettit decision) and that Judge Caporale writes a dissenting opinion claiming that State v. Pettit was correctly decided.

The Jury Instructions

In a murder case, like this one, where 1st degree murder, 2nd degree murder, and manslaughter are all potential crimes that were committed, the jury is shown the elements of each crime in one big jury instruction. In this case it was Instruction No. 6. This is called a "step" instruction because it starts with 1st degree murder and then "steps" down to 2nd degree murder and then down to manslaughter. There are two things that are important to this discussion that you should notice. First, notice how a jury is supposed to transition from the most serious crime to less serious. If a jury agrees to find a person guilty the instructions say, "you shall not then consider the next lesser-included offense." But if they find the State failed to prove beyond a reasonable doubt any one or more of the material elements, "it is your duty to find the defendant not guilty of the crime."

Second, notice that for manslaughter, a sudden quarrel is listed as a material element of the crime. In fact, the Court even describes a sudden quarrel as an element in their discussion.

The Discussion

The Court states that Jones claims a jury would never consider the offense of voluntary manslaughter until that jury reached a unanimous verdict of not guilty on the offense of 2nd degree murder. This is a way of blaming the arbitrary choice between 2nd degree murder and manslaughter on the jury instructions. The Court says that Jones claims that, "in any case where a greater charge than voluntary manslaughter is presented to the jury, the possibility of the jury returning a verdict of guilty of voluntary manslaughter is effectively negated."

But how could it be effectively negated where the only greater charge was 1st degree murder? It would not be effectively negated because the difference between 1st degree murder and voluntary manslaughter is the element of premeditation. The greater charge of first-degree murder contains the element that distinguishes between it and the lesser charge of manslaughter.

You see, the Court is really talking only about the difference between 2nd degree murder and voluntary manslaughter. There the possibility of a jury returning a verdict of guilty of voluntary manslaughter is effectively negated because 2nd degree murder doesn't contain the extra element that distinguishes voluntary manslaughter and the jury is required to look at 2nd degree murder first. The problem is not the step instruction it is the elements of the two crimes.

Despite the plain language in the jury instruction, the Court decides, "The instruction as given does not require that the jury unanimously decide the defendant is not guilty of first degree murder before considering a lesser offense." Wait a minute! Is there a piece of the puzzle missing here? The jury instruction says if they find the defendant guilty they can't consider the lesser-included offenses. But the instruction also says the jury has a duty to find the defendant not guilty before they can consider the lesser-included offense. The missing piece to this puzzle is that the jury is also instructed that to find a defendant not guilty they must reach a unanimous decision. This is given in the "Submission to the Jury" instruction. This is Nebraska Pattern Jury Instruction, NJI.2d Crim. 9.0. This instruction is given in all criminal trials. The first two lines of that instruction say, "This case is now ready to be submitted to you for your consideration. Any verdict you reach must be unanimous." So why did they cover that up?

The Court Sees The Problem

They covered that up because the Court saw what the problem was. They stated it the paragraph that says if the jury finds an intentional killing occurred without premeditation they have to find the defendant guilty of 2nd degree murder "without ever getting to the issue of whether or not the intentional killing was upon a sudden quarrel." And that is the problem, a person who is actually guilty of manslaughter gets convicted of 2nd degree murder instead! Like the U.S. Supreme Court said in Mullaney v. Wilbur, where a State has chosen to distinguish between those who kill upon a sudden quarrel from those who kill without that excuse and then does not require or allow a proof of that distinction, that State has violated the Due Process of Law.

The Court Makes Up Another Problem

The Court says the problem is not that the jury instruction requires an acquittal before consideration of the lesser-included offense. Instead, they say the problem is with Pettit. They decide that it is because of Pettit that the possibility of returning a verdict of guilty of manslaughter upon a sudden quarrel is effectively negated.

Another Solution

The Court then decides to solve this problem by overruling Pettit and sending us back to manslaughter upon a sudden quarrel being an unintentional crime. That means manslaughter upon a sudden quarrel started out as an intentional crime (the common-law voluntary manslaughter) back in the 1870's, it stayed "intentional" until the Court took "intent" out in Batiste in 1989, then they put "intent" back in with Pettit (also in 1989), and now in 1994 we are taking "intent" back out. The only thing the Legislature did during that time was to reenact the same statutory language for manslaughter in 1977. It was not the Legislature that changed this.

Back and Forth

So why change the definition of manslaughter upon a sudden quarrel back and forth? Why change the definition of 2nd degree murder back and forth? 2nd degree murder started out with "malice" in the 1870's and stayed that way until the Legislature adopted the new criminal code in 1977. The Legislature purposely took "malice" out of 2nd degree murder, then the Myers Court puts it back in 1994 and then the Burlison Court takes it back out in 1998. Looks familiar doesn't it. Back and forth, back and forth. What is going on here?

Look Closely

Earlier the Court said that the jury instructions did not require the jury to reach a unanimous verdict, i.e. acquit, on the greater charge before considering the lesser-included. Now, after finding "intent" was the problem, they say it was appropriate to require the jury to do just that. The Court then goes on to say that there was no prejudice to Jones because of the evidence and circumstances of this case. So who tried Jones, the jury or the Supreme Court? If the jury's examination of the charge of manslaughter was "effectively negated" it wasn't the jury that decided what he was guilty of. So does the Court overturn Jones' conviction for that reason?

Overturning Jones' Conviction

No. The Court overturns Jones' conviction because "malice" wasn't included in the 2nd degree murder jury instruction. After discussing all the problems with the jury instructions, the manslaughter definition, and the evidence, the Court goes back to relying upon the Myers decision to reverse Jones's conviction. Why not just do that at the start and get on with it? After all, if malice is in 2nd degree murder then it is malice that distinguishes between the two crimes. 2nd degree murder is with malice and manslaughter upon a sudden quarrel is without malice. Simple.

So why did the Court take "intent" out of manslaughter and say that it is intent that distinguishes between 2nd degree murder and manslaughter upon a sudden quarrel, if "malice" solved that problem? Simple again. The Court knew that the Myers decision putting "malice" back into 2nd degree murder would not stand up to scrutiny. They knew then, only 5 months after the Myers decision, that they did not have the power to put "malice" back into the 2nd degree murder statute. The reason they took "intent" out of manslaughter upon a sudden quarrel was to try and fix the problem so that when Myers fell they could still claim there wasn't any problem in the statutes.

The Problem is the 2nd Degree Murder Statute

As I showed at the beginning, there are constitutional reasons why the Court cannot take "intent" out of manslaughter. And look at the problems the Court caused by trying. Now there is a legal question whether you can convict someone of using a weapon, like a firearm, to commit manslaughter. After Jones manslaughter is an unintentional crime. But using a firearm to commit a felony is an intentional crime. How can you intentionally use a firearm to commit an unintentional crime? That is how silly the Jones Court's decision is.


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STATE OF NEBRASKA, APPELLEE, v.
***. L. JONES, APPELLANT.

245 Neb. 821, 515 N.W.2d 654
Filed May 6, 1994. No. S-92-1054


Appeal from the District Court for Douglas County: ROBERT V. BURKHARD, Judge.
Reversed and remanded for a new trial.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley for appellant.
Don Stenberg, Attorney General, and Donald A. Kohtz for appellee.
HASTINGS, C.J., BOSLAUGH,WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ.
BOSLAUGH, J.

The defendant, *** L. Jones, was charged with first degree murder and use of a firearm in the commission of a felony in the shooting death of his wife, Tara Jones. He was convicted by a jury of second degree murder and use of a firearm and was sentenced by the district court to consecutive terms of imprisonment for not less than 50 years on the murder conviction and 5 to 10 years for the use of a firearm conviction.

On March 22, 1992, the defendant left Omaha, Nebraska, to take a job selling cars in Salt Lake City, Utah. His wife, Tara, and her 6-year-old son, Brian, planned to move to Utah with the defendant after the end of the school year.

On Friday, March 27, the defendant was unable to reach his wife at home when he tried to call. On Friday evening, he called Wendt, who told him that due to illness of her children, she was unable to attend the cat show, and that Tara had driven up with some other people on Friday. Wendt testified at trial that the defendant threatened to kill her and Tara if she was lying.

Later that evening, the defendant called Curry, who also told him she had decided not to go to Sioux City. She told the defendant that Tara had gone to the cat show with some other people. Curry also testified that the defendant threatened to kill her and Tara if she was covering for Tara.

The defendant became concerned about the whereabouts of his wife and called the paternal grandmother of Tara's son. He discovered that Brian had been dropped off at his grandmother's by Tara on Thursday night.

The defendant then determined where the cat show was being held in Sioux City and attempted to locate Tara there. He discovered that Tara was not registered at the cat show. He then called the cat show hall, asked that Tara be paged, and found that no one responded to the page.

The defendant called his mother-in-law, Sandy Schaeffer, who told him that Tara had gone to the Sioux City cat show.

The defendant decided to come back to Omaha to try to find his wife. He purchased an airline ticket and returned to Omaha on Saturday, March 28. The defendant was met at the airport by his father, and they drove to Tara's apartment to see if the cats were there. Upon entering the apartment, he observed that two of their four cats were gone.

The defendant later discovered that there was a cat show taking place in the Chicago area and that Tara had gone to that show. The defendant called the Champaign-Urbana police, telling them he needed to contact his wife for a family emergency. The police station was across the street from the building housing the cat show, and the police agreed to contact her. The police contacted Tara, and she phoned the defendant.

While waiting for Tara to call him, the defendant looked through her dresser drawer and noticed that her lingerie and miniskirts were missing. A neighbor testified that she heard the defendant yelling," 'I'm going to blow her head off.'

When Tara called, she was unable to explain where she was staying, and they got into an argument. Tara told the defendant she would be returning to Omaha by airplane on Sunday evening. During the rest of Saturday evening, the defendant made several phone calls to his mother-in-law and also spoke again with his wife.

On Sunday, the defendant and his father went to the airport and picked up his and Tara's car. After picking up the car, the defendant returned alone to the apartment and left a note and his wedding ring for Tara. He expressed his regret that she felt the marriage was over and stated that he would always love her.

Late Sunday night, March 29, the defendant received a phone call at his parents' house from Tara. She was at her mother's house and asked if the defendant would come over.

The defendant went to see Tara and argued with her in the presence of her mother and stepfather. During the argument, Tara told the defendant that she had been with another man in Illinois and had slept with him.

The defendant then returned to his parents' home. Sometime thereafter, Tara called and asked him to return to her parents' residence. The defendant went back, and he and Tara had sex. He returned to his parents' home around 9 o'clock on Monday morning.

The defendant thought after spending the night with Tara that things were going to be better between them. He returned later that morning to pick up Tara to take her home. Upon his return, Tara indicated that she was still confused and needed more time. The defendant reacted with anger and disgust.

Later that Monday afternoon, the defendant returned to his apartment for the purpose of retrieving some clothes and his father's video cassette recorder. When he arrived at the apartment, his wife, stepson, and Tara's brother Scott were there.

After a short period of time, the defendant asked Scott to leave so he could be alone with Tara to talk things out. After Scott left, the defendant and Tara began to talk and soon began to argue about her infidelity and their relationship.

The argument escalated, and Tara locked herself in the master bedroom of the apartment. The defendant kicked in the door. He testified that Tara was pointing a gun at him, that they struggled over the gun, and that he snapped. He did not recall the shooting itself.

Tricia Ferguson, a resident of the apartment complex, testified that on March 30, as she was driving into the apartment parking lot, she saw what appeared to be Tara trying to get back into her apartment through the window. Next she saw Tara's shirt "fly off" and Tara running away from the window. Ferguson then observed a hand with a gun in it extend from the window area and heard approximately four shots. As the shots were fired, Tara staggered and eventually fell. Within seconds, the defendant came out of the apartment and shot Tara two more times in the head. Then he went back into the apartment.

The shooting occurred in the daylight hours in front of numerous witnesses, including several construction workers who were all yelling at the defendant to leave Tara alone. Their testimony concerning the killing was the same as Ferguson's.

Dr. Jerry Jones, the pathologist who performed the autopsy on Tara, testified that the two shots to her head were the fatal shots.

From Friday, March 27, through the time the defendant shot and killed his wife, the defendant had been drinking constantly.

On appeal to this court, the defendant contends that the trial court erred by overruling the defendant's objection to jury instruction No.6, which required the jury to find the defendant not guilty of murder in the second degree before they could consider the lesser-included offense of voluntary manslaughter; that the trial court erred by overruling the defendant's objection to that portion of instruction No. 11 which defines malice as the state of mind shown by intentionally doing a wrongful act; and that the trial court erred by giving Nebraska's pattern jury instruction NJI 14.08 on reasonable doubt because that instruction violates due process in that it equates reasonable doubt with substantial doubt, grave uncertainty, and moral certainty contrary to the U.S. Supreme Court's ruling in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).

Instruction No. 6 has been referred to as a "step" instruction or "acquittal first" instruction. As given in the defendant's trial, it is set forth as follows:

Under Count I of the Information in this case, depending on the evidence, you may find the defendant:

A. Guilty of murder in the first degree; or

B. Guilty of murder in the second degree; or

C. Guilty of voluntary manslaughter; or

D. Not guilty.

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of murder in the first degree in Count I are:

1. That the defendant, *** L. Jones, killed Tara L. Jones;

2.That the defendant did so purposely and with deliberate and premeditated malice;

3. That the defendant did so on or about March 30,1992; and

4. That the defendant did so in Douglas County, Nebraska.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the first degree necessary for conviction.

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of murder in the first degree in Count I, and you shall complete Verdict Form 1; and you shall not then consider the next lesser-included offense hereafter set forth in this instruction. On the other hand, if you find that the State has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find the defendant not guilty of the crime of murder in the first degree in Count I. You shall then proceed to consider the lesser-included offense of murder in the second degree

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of murder in the second degree are:

1. That the defendant, *** L. Jones, killed Tara L. Jones;

2. That the defendant did so intentionally but without premeditation;

3. That the defendant did so on or about March 30,1992; and

4. That the defendant did so in Douglas County, Nebraska.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the second degree necessary for conviction.

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of murder in the second degree in Count I, and you shall complete Verdict Form 2, and you shall not then consider the next lesser included offense hereinafter set forth in this instruction. On the other hand, if you find the State has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find the defendant not guilty of the crime of murder in the second degree in Count I. You shall then proceed to consider the next lesser-included offense of voluntary manslaughter.

The material elements which the state must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of voluntary manslaughter are:

1. That the defendant, *** Jones, killed Tara L. Jones;

2. That the defendant did, without malice, kill Tara L. Jones intentionally upon a sudden quarrel;

3. That the defendant did so on or about March 30, 1992; and

4. That the defendant did so in Douglas County, Nebraska.

The state has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of voluntary manslaughter necessary for conviction.

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of voluntary manslaughter in Count I; and you shall complete Verdict Form 3. On other other [sic] hand, if you find the State has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find the defendant not guilty of the crime of voluntary manslaughter and not guilty of any charge in this case in Count I, and you shall complete Verdict Form 4.

The burden of proof is always on the State to prove beyond a reasonable doubt all of the material elements of the crime charged or included therein, and this burden never shifts.

The defendant contends that since the jury could not consider the offense of voluntary manslaughter until it unanimously reached a verdict of not guilty on the offense of second degree murder, that in any case where a greater charge than voluntary manslaughter is presented to the jury, the possibility of the jury returning a verdict of guilty of voluntary manslaughter is effectively negated.

The instruction as given does not require that the jury unanimously decide that the defendant is not guilty of first degree murder before considering a lesser offense. Although any verdict finally arrived at by the jury must be unanimous, the jury is not required in its preliminary deliberations and discussion to be unanimous before considering whether the defendant is guilty of a lesser offense.

The defendant argues that if the jury deliberates and finds that an intentional killing occurred without premeditation, they would have to find the defendant guilty of second degree murder without ever getting to the issue of whether or not the intentional killing was upon a sudden quarrel, the element that under State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), distinguishes manslaughter from second degree murder.

The problem with instruction No. 6 is not that it requires the jury to acquit the defendant on the greater charge before considering the lesser charge. An acquittal first instruction provides "for a more logical and orderly process for the guidance of the jury in its deliberations." State v. Wussler, 139 Ariz. 428, 430, 679 P.2d 74, 76 (1984). There are many jurisdictions that approve the propriety of instructions requiring acquittal of the most serious offense charged before consideration of lesser offenses. See, e.g., Lindsey v. State, 456 So.2d 383 (Ala.Crim.App. 1983), aff'd 456 So.2d 393 (Ala. 1984), cert. denied 470 U.S. 1023, 105. Ct. 1384, 84 L.Ed.2d 403 (1985); Whiteaker v. State, 808 P.2d 270 (Alaska App.1991); State v. Wussler, supra; People v. Padilla, 638 P.2d 15 (Cob. 1981); State v. Sawyer, 227 Conn. 566, 630 A.2d 1064 (1993); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353 (1979), appeal dismissed 444 U.S. 803, 100 S.Ct. 23, 62 L.Ed.2d 16; State v. Van Dyken, 242 Mont. 415, 791 P.2d 1350(1990), cert. denied 498 U.S. 920, 111 5.Ct. 297, 112 L.Ed.2d 251; People v. Boettcher, 69 N.Y.2d 174, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987); State v. Wilkins, 34 N.C.App. 392, 238 S.E.2d 659 (1977), review denied 294 N.C. 187, 241 S.E.2d 516; Commonwealth v. Hart, 388 Pa.Super. 484, 565 A.2d 1212 (1989), appeal denied 525 Pa. 642, 581 A.2d 569(1990); State v. McNeal, 95 Wis.2d 63, 288 N.W2d 874 (Wis.App. 1980).

The problem with instruction No. 6 is that because of the holding of State v. Pettit, supra, in any case where evidence of a greater charge than manslaughter upon a sudden quarrel is presented to the jury, the possibility of returning a verdict of guilty of manslaughter upon a sudden quarrel is effectively negated. According to Pettit, the only element that distinguishes manslaughter upon a sudden quarrel and second degree murder is the element of the sudden quarrel, since both killings are intentional.

In Pettit, the majority held that to be guilty of manslaughter committed upon a sudden quarrel, the killer must commit the slaying with the intent to kill. The majority relied on cases from other jurisdictions that had statutes which specifically distinguished and defined voluntary and involuntary manslaughter.

As the dissenters in Pettit point out, "the words 'voluntary' and 'involuntary' have not been a part of Nebraska's manslaughter statute since 1873." 233 Neb. at 474, 445 N.W.2d at 912 (Fahrnbruch, J., dissenting). Currently, Nebraska's manslaughter statute provides: "(1) A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act. (2) Manslaughter is a Class III felony." Neb. Rev. Stat. § 28-305 (Reissue 1989).

Neb. Rev. Stat. § 28-304 (Reissue 1989) provides: "(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation. (2) Murder in the second degree is a Class IB felony."

Under the present statutes, second degree murder is the intentional killing of another without premeditation. Manslaughter is the killing of another without malice, upon a sudden quarrel, or an unintentional killing while in the commission of an unlawful act.

Malice has most recently been defined in our cases as "that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse." State v. Thompson, 244 Neb. 375, 399, 507 N.W.2d 253, 270(1993).

Since our statutes define manslaughter as a killing without malice, there is no requirement of an intention to kill in committing manslaughter. The distinction between second degree murder and manslaughter upon a sudden quarrel is the presence or absence of an intention to kill. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890(1989), was incorrect in its reasoning and holding, and to that extent, it is overruled.

At the time instruction No. 6 was given to the jury, it was appropriate to require the jury to acquit on the greater charge before considering the lesser. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant. State v. Bartholomew, 212 Neb. 270, 322 N.W.2d 432(1982).

The defendant's argument that he was prejudiced because the jury was unable to consider his defense that the killing was manslaughter is without merit because under any type of instruction, "the jury would have been required to consider the evidence in relation to the greater charge first." State v. Yamashiro, 8 Haw. App. 595, 608, 817 P.2d 123, 130 (1991). Under the evidence and circumstances of this case, it cannot reasonably be said that the verdict was compelled by the instruction rather than by the evidence.

However, instruction No. 6 is erroneous for a different reason. In State v. Myers, 244 Neb. 905, 510 N.W.2d 58(1994), we held that malice is a necessary element of murder in the second degree and that an instruction that failed to include malice as an essential element of murder in the second degree was plain error and was prejudicial. This error requires that the judgment be reversed and the cause be remanded for a new trial.

Next, the defendant contends that the trial court erred in giving instruction No. 11, which reads as follows:

The Nebraska Criminal Code in full force and effect at the time alleged in the Information pertaining to the crime of voluntary manslaughter provides in substance as follows:

"(1) A person commits manslaughter if he kills another without malice. . . upon a sudden quarrel. . . [.]"

"Malice" is defined as that condition of the mind which is shown by intentionally doing a wrongful act without just cause or excuse. It means any willful or corrupt intention of mind.

The defendant argues that the definition is confusing when it is combined with the manslaughter instruction requiring a showing of an intentional killing upon a sudden quarrel.

The jury was also given instruction No. 12, which stated:

A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self control.

The phrase "sudden quarrel" does not necessarily mean an exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and Tara Jones.

In considering the offense of voluntary manslaughter, you should determine whether the defendant acted under the impulse of passion suddenly aroused which clouded reason and prevented rational action, whether there existed reasonable and adequate provocation to excite the passion of the defendant and Obscure and disturb his power of reasoning to the extent that he acted rashly and from passion, without due deliberation and reflection, rather than from judgment, and whether, under all the facts and circumstances as disclosed by the evidence, a reasonable time had elapsed from the time of provocation to the instant of the killing for the passion to subside and reason resume control of the mind.

You should determine whether the suspension of reason, if shown to exist, arising from sudden passion, continued from the time of provocation until the very instant of the act producing death took place.

Therefore, if the evidence convinces you beyond a reasonable doubt that the defendant killed Tara Jones intentionally upon a sudden quarrel, you should find him guilty of the offense of manslaughter.

Since we are overruling the holding in State v. Pettit, supra, that manslaughter is an intentional killing of another under Nebraska law, both instructions Nos. 6 and 12 regarding the crime of manslaughter were in error. In each of those instructions, the trial court erroneously instructed the jury that to convict the defendant of voluntary manslaughter, the State was required to prove that the defendant intentionally killed the victim.

Finally, the defendant claims that the trial court erred in giving instruction No. 5, which defined reasonable doubt. Relying upon the ruling of the U.S. Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), the defendant argues that his conviction should be reversed.

Instruction No. 5 is the same jury instruction on reasonable doubt we examined and approved in State v. Morley, 239 Neb. 141, 474 N.W.2d 660(1991). Subsequently, on March 22, 1994, the U.S. Supreme Court found the Nebraska instruction on reasonable doubt not erroneous in Victor v. Nebraska,___ U.S.____, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

SHANAHAN, J., not participating.

CAPORALE, J., concurring in part, and in part dissenting.

I agree that the trial court's omission of the element of malice in its definition of second degree murder requires that this cause be remanded for a new trial. See, State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994); State v. Franklin, 241 Neb. 579, 489 N.W2d 552(1992); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988); State v. Keithley, 227 Neb. 402, 418 N.W.2d 212 (1988); State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983).

However, I disagree with the majority's view that State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), was wrongly decided. Its careful analysis of the manslaughter statute, Neb. Rev. Stat. § 28-305 (Reissue 1989), is correct, and I adhere to it.

HASTINGS, C.J., joins in this concurrence and dissent.


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