Overview of Selected Cases Before
State v. Myers and State v. Jones


I present this overview of cases mainly because of how the Nebraska Supreme Court decided State v. Myers. The Myers Court stated that "this court has continued to require malice as an element of second degree murder" despite the changes to the 2nd degree murder statute in 1977. These cases show that court had not always required "malice" as an element of 2nd degree murder. Some also show the confusion between 2nd degree murder and manslaughter.

State v. Hardin, 212 Neb 774, 326 N.W.2d 38 (11/5/1982) Affirmed
The defendant was charged with 1st degree murder and the jury convicted him of 2nd degree murder. The Court recites both State v. Rowe, 210 Neb 418, 315 N.W.2d 250 (1982) and the statutory definition of 2nd degree murder. Rowe says "purposely and maliciously" where the statute only says "intentionally and without premeditation."

State v. Drew, 215 Neb 685, 344 N.W.2d 923 (3/2/1984) Affirmed
The defendant was charged with 2nd degree murder and convicted by a jury of manslaughter. There is no mention of the elements of 2nd degree murder.

State v. Moniz, 224 Neb 198, 397 N.W.2d 37 (12/5/1986) Affirmed
The defendant was convicted of 2nd degree murder in a bench trial, i.e. without a jury. The court cites both the statutory, "intentionally without premeditation" and the "purposely and maliciously" language from State v. Rowe. However, in a dissenting opinion one of the Supreme Court judges argues that this crime was only manslaughter. This case is very much like the Kane and Abel story we tell in the Real Problem section, only this time Abel does die and even the Supreme Court judges can't agree on whether the crime is 2nd degree murder or manslaughter.

State v. Wilson, 225 Neb 466, 406 N.W.2d 123 (5/22/1987) Affirmed
The defendant was charged with 1st degree murder and convicted by a jury of 2nd degree murder. There is no mention of "malice" being in the information or jury instructions.

State v. Ryan, 226 Neb 59, 409 N.W.2d 579 (7/24/1987) Affirmed
The defendant was charged with 1st degree murder and convicted by a jury of 2nd degree murder. There was no specific mention of "malice" as a necessary element of 2nd degree murder and, ". . .Moreover, our review of the record reveals no prejudice resulted to the defendant because of the jury instructions given." These will turn out to be famous last words nine years later in State v. Ryan, 249 Neb 218, 543 N.W.2d 128 (1996) where the court will find these very jury instructions to be "plain error and prejudicial."

State v. Williams, 226 Neb 647, 413 N.W. 2d 907 (10/16/1987) Affirmed
The defendant was charged with 1st degree murder and a jury convicted him of 2nd degree murder. The court cites the statutory elements, intentionally without premeditation, but never mentions "malice" in citing both State v. Moniz and State v. Rowe.

State v. Jackson, 231 Neb 207, 435 N.W.2d 893 (2/17/1989) Affirmed
The defendant was convicted by a jury of 2nd degree murder. There is no mention of "malice."

State v. Rokus, 240 Neb 613, 483 N.W.2d 149 (5/11/1992) Affirmed
A jury convicted the defendant of 2nd degree murder. The case recites the statutory elements of "intentionally, but without premeditation" and there is no mention of "malice."

State v. Cave, 240 Neb 783, 484 N.W.2d 458 (5/29/1992) Affirmed
This is the case where problems began to show up but were not resolved. We talk about this case in greater detail later. The defendant was charged with 1st degree murder and convicted in a bench trial of 2nd degree murder. There was no mention of "malice" as a necessary element of 2nd degree murder, merely a recitation of the statute. The Court also said, "... a sudden quarrel is an additional circumstance which serves to mitigate an intentional killing." The Court is talking about how manslaughter can still be an intentional killing. They later try to undo this in State v. Jones.

State v. Franklin, 241 Neb 579, 489 N.W.2d 552 (9/25/1992) Affirmed
The defendant was charged with 2nd degree murder and found guilty in a bench trial. The Court recites the elements of "purposely and maliciously" from State v. Rowe and then they recite the information which did not allege "malice" and they still affirmed the conviction!

State v. Houser, 241 Neb 525, 490 N.W. 2d 168 (9/25/1992) Affirmed
The defendant was charged with 1st degree murder and then convicted of 2nd degree murder by a jury. There was no mention of "malice" or the elements of 2nd degree murder.

State v. Lowe, 244 Neb 173, 505 N.W.2d 662 (9/17/1993) Affirmed
A jury convicted the defendant of 2nd degree murder. There was no mention of "malice" or the elements of 2nd degree murder.

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