2006 Nebraska Revised Statutes - § 28-303 — Murder in the first degree; penalty.

Section 28-303
Murder in the first degree; penalty.

A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.

Source:

Laws 1977, LB 38, § 18

Laws 2002, Third Spec. Sess., LB 1, § 3

Annotations:

One may commit first degree murder either by committing premeditated murder or by killing another person while in the commission of certain felonies. A defendant need not be charged and convicted of an underlying felony in order to be convicted of first degree murder pursuant to subsection (2) of this section. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).

A specific intent to kill is not required for felony murder, but only the intent to do a felonious act which causes a victim's death. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

The felony murder statute does not violate the eighth amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).

A victim's fatal heart attack, proximately caused by a defendant's felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder. State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986).

Proof of intent to kill is not an element of crime of felony murder. Statement in State v. Kauffman, 183 Neb. 817, 164 N.W.2d 469 (1969), that "purpose to kill is conclusively presumed from the criminal intention required for robbery" is disapproved. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).2. Jury

In a first degree murder case, the jury need only be unanimous as to its verdict that defendant committed first degree murder, and not as to the theory which brought them to that verdict. State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).3. Lesser-included offense

Second degree murder and manslaughter are not lesser-included offenses of the felonies set out in this section, so no instruction to the jury on them is ordinarily required. State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982).4. Malice

In order to be guilty of first degree murder, one must have killed purposely and with deliberate and premeditated malice. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).5. Requisite mental state

In order to prove the requisite mental state, the state is required to show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause and which is defined as any willful or corrupt intention of the mind. State v. Krimmel, 216 Neb. 825, 346 N.W.2d 396 (1984).

To prove the requisite mental state for first degree murder, the state must show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause or excuse and which is defined as any willful or corrupt intention of the mind. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).

~Revised Statutes Cumulative Supplement, 2006