2006 Nebraska Revised Statutes - § 28-304 — Murder in the second degree; penalty.

Section 28-304
Murder in the second degree; penalty.

(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.

Source:

Laws 1977, LB 38, § 19

Annotations:

Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).

In order to support a conviction of second degree murder, the defendant must intend to kill; the prosecution must prove, beyond a reasonable doubt, that the defendant caused the victim's death intentionally. State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992).

In order to convict a person of second degree murder, the State is required to prove all three elements--death, intent to kill, and causation--beyond a reasonable doubt; none of the elements are presumed upon proof of the others, nor is any element presumed in the absence of proof by defendant of the converse of that element. Evidence of provocation by one other than the person whom defendant killed or attempted to kill cannot serve to mitigate an intentional killing from second degree murder to manslaughter. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).

The essential elements of second degree murder are that the murder must be done purposely and maliciously. State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).2. Lesser-included offense

Second degree murder is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).3. Malice

Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).

Malice, in the context of this provision, has been said to denote that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse and to be any willful or corrupt intention of the mind. State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986).4. Plea bargains

Although no authority was cited that a plea bargain must be supported by a concession on the part of the State, altering of charge from first degree murder to second degree murder was a substantial concession because it removed the possibility of the death sentence. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).5. Requisite mental state

The state of mind required for second degree murder may be inferred from the evidence of the criminal act. State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987).

The state of mind required for second degree murder may be inferred from the circumstantial evidence of the criminal act. State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983).6. Sentencing

Under the provisions of section 28-105 and subsection (2) of this statute, a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987).

A fifteen-year sentence was not excessive, in view of the seriousness of the crime, even though the defendant was a fifty-eight-year-old man with no previous criminal record, who was apparently provoked by the excessive demands of the victim, and who expressed remorse about committing the crime. State v. Kelly, 207 Neb. 295, 298 N.W.2d 370 (1980).

Where state Supreme Court interpreted 16- to 20-year sentence for second degree murder as definite 20-year term with a statutory 10-year minimum, defendant not prejudiced. Rouse v. Foster, 672 F.2d 649 (8th Cir. 1982).

~Reissue Revised Statutes of Nebraska