Malice in Nebraska

• Publication year: 2021

76 Nebraska L. Rev. 399. Malice in Nebraska

399

John Rockwell Snowden*

Second Degree Murder, Malice, and Manslaughter in Nebraska: New Juice for an Old Cup

TABLE OF CONTENTS

I. Introduction 400

II. A Brief History of Murder and Malice 401

A. Malice Emerges as a General Criminal Intent or

Bad Attitude 403

B. Malice Becomes Premeditation or Prior Planning. . . 404

C. Malice Matures as Particular States of Intention . . . 407

III. A History of Murder, Malice, and Manslaughter in

Nebraska 410

A. The Statutes 410

B. The Cases 418

IV. Puzzles of Nebraska Homicide Jurisprudence 423

A. The Problem of State v. Dean: What is the Mens

Rea for Second Degree Murder? 423

B. The Problem of State v. Jones: May an Intentional

Homicide Be Manslaughter? 429

C. The Problem of State v. Cave: Must the State Prove

Beyond a Reasonable Doubt that the Accused Did

Not Act from an Adequate Provocation? 438

D. The Problem of State v. Ryan and State v. White:

Are There Excuses or Justifications that Although

Not Recognized and Mandated by Law May Still

Negate Malice? 443

V. Conclusion (And a Jurisdictional Aside that May Be the

Heart of the Matter) 449

400

I. INTRODUCTION

The law is a hollow vessel; inexhaustible in its uses, fathomless.(fn1)

In 1932, Professor Francis Bowes Sayre began his now foundational article on mens rea by stating that no problem of the criminal law has been of more fundamental importance or more baffling.(fn2) The problem, of course, is that the law mandates that every criminal offense must be comprised of a mens rea, or mental element, and an actus reus, or particular prohibited act. As Bishop said, "[t]here can be no crime, large or small, without an evil mind."(fn3)

In the law of homicide the actus reus is always the same-someone has caused the death of another. Yet, homicide offenses are traditionally graded into at least two categories: murder or manslaughter. It is the mental element, the mens rea, that distinguishes the offenses. For the murder or manslaughter distinction, Bishop clearly was correct: "the essence of an offence is the wrongful intent . . ."(fn4) The mens rea that most critically distinguishes murder from manslaughter is known as malice. A killing with malice is murder; a killing without malice may be no greater than manslaughter.

A second degree murder conviction in Nebraska has a possible sentence of twenty years to life.(fn5) A manslaughter conviction has a sentencing range from one to twenty years.(fn6) Beyond the context of the accused individual, the murder-manslaughter distinction is also of significant concern to the people, either as direct participants in the legal process or as watchers for the salvation of the state.

In 1994, the Nebraska Supreme Court unleashed a whirlwind of controversy with its unanimous opinion in State v. Myers,(fn7) which firmly established malice as one of the required mens rea elements for second degree murder.(fn8) Scholarly controversy primarily has focused

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on whether or not the court stepped outside the appropriate judicial role in Myers,(fn9) and whether or not the court's explanation for its Myers opinion two years later in State v. Ryan(fn10) carried the day.(fn11) The focus here will not question Myers or its justification in Ryan. Rather, the turn is toward malice and the substantive criminal law.

Malice is almost as old as the common law of homicide. But, its meaning and function has changed over time with the law itself. Part II will present a brief history of malice and murder. Malice began as a general criminal intent, an evil mind or bad attitude. It became tied to the idea of prior planning of a killing and today is almost everywhere understood as (1) an intent to kill, (2) an intent to do grievous bodily harm, or (3) an intent to act with a "depraved heart" conscious disregard of an extreme risk to human life.

Part III will trace the statutory history of murder, malice, and manslaughter in Nebraska and then will discuss the case law dealing with malice. By the time Nebraska became a state, the statutes had dropped any definition of malice. Yet, from the first appearance of malice in the Nebraska Supreme Court opinions until the present, malice consistently has been defined as the intentional doing of a wrongful act without just cause or excuse. This definition comes from the early days of the common law. It is the ancient idea of a general criminal intent, which distinguishes the criminal from the merely wrongful. Until very recently, the function of malice in Nebraska homicide law was minimal at best. But today its hoary visage is matched by the electric kool-aid elixir the concept carries.

Part IV will consider four recent homicide cases and the puzzles they create for Nebraska law. What is the mens rea for second degree murder? May an intentional homicide be manslaughter? Must the State prove beyond a reasonable doubt that the accused did not act from an adequate provocation? May excuses or justifications, although not recognized and mandated by law, negate malice?

II. A BRIEF HISTORY OF MURDER AND MALICE

In the English law before the 1200s, homicide was treated almost entirely as a civil matter. The "slayer," as the killer was called, was required to pay damages to the victim's family and to persons whose

402

"peace" had been "broken" by the killing.(fn12) No criminal sanctions were imposed. It was lawful and even proper for kindred of the victim to avenge themselves by killing the offender. Few saw any need for the government to impose punishment.(fn13) When the slayer was unknown, "morth-works" or "murdrum" described deeds of darkness,(fn14) or, more specifically, secret killings, which resulted in a fine on the township (known as a murdrum fine or as "Englishry").(fn15) This possibly may have been the first emergence of the use of the word murder to describe a type of homicide.(fn16) Thinking that the fine was too heavy of a burden for the township to bear, a transition occurred in which the homicide was viewed as an offense against the state, not just a wrong against the victim's survivors.(fn17) Thereafter, the state took on the responsibility of punishing the offender.

Two broad categories of homicides were created: felonious homicide (often simply called culpable homicide),(fn18) which was a capital offense; and nonfelonious homicide (a noncapital offense).(fn19) Felonious homicide described any homicide that was not justifiable or excusable.(fn20) The most typical felonious homicide in the thirteenth century was a killing upon a sudden occasion, usually a drunken quarrel followed by a brawl and the use of a knife or club, which every man carried.(fn21) Pleas of misadventure or self-defense (raised when seeking a grant of pardon) were claims that the offender had acted in an excusing, nonfelonious circumstance.(fn22)

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Nonfelonious homicide was further divided into justifiable homicide and excusable homicide.(fn23) Justifiable homicides were killings done in furtherance of justice or in execution of a warrant and resulted in outright acquittals.(fn24) Excusable homicides (or pardonable homicides) were homicides committed in self-defense or by "misadventure" (also referred to as per infortunium).(fn25) Homicide by misadventure occurred when "a man doth an act that is not unlawful, which without any evil intent tendeth to a man's death."(fn26) Although responsibility did attach to offenders, they were allowed to ask the king for a pardon (which was almost always granted). In such cases, the offender suffered only imprisonment until the pardon was granted; the expense of procuring a pardon; forfeiture of the offender's property; and continued liability until the disposition of an appeal by the next of kin of the victim.(fn27)

A. Malice Emerges as a General Criminal Intent or Bad Attitude

Homicide law experienced considerable change throughout the thirteenth, fourteenth, and fifteenth centuries.(fn28) In 1278, a statute purported to limit the use of pardons by requiring any claim of justifiable homicide, killing by misadventure, or killing in self-defense to be tried first by a jury. If the jury found that the homicide occurred by misadventure or self-defense, then a special verdict was issued, and the King could grant a pardon.(fn29)

This statute also required the jury to find that the killing was "not by felony or of malice aforethought."(fn30) Malice aforethought (also referred to as "premeditated malice"(fn31) or "malice prepense"(fn32)) had become a term of law during the late 1200s.(fn33) When associated with homicides, however, it meant no more than "deliberately," "wickedly," "willfully," or "without lawful excuse"-a general expression used to denote the mental element required of felonious homicide, but had

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nothing to do with actual premeditation, malevolence, or spite.(fn34) Put another way, felonious homicides were defined as killings with malice (meaning deliberate and neither justifiable nor excusable), but malice was understood only as a "threshold degree" of mens rea.(fn35) Malice was a bad attitude, a lack of any colorable, noncriminal explanation or legitimating reason. Professor Kaye argues that if it had meant premeditation, malevolence, or spite-a much narrower definition-it would have allowed persons who killed another deliberately "upon a sudden occasion" (the most typical culpable homicide) to ask for a pardon since those persons would, in most instances, neither have planned the killing nor acted with particular ill will.(fn36)

After 1340, the fine for murdrum was abolished, yet the term "murder" continued to be commonly used to describe the worst kind of homicide.(fn37) During this time, evidence tends to show that Parliament...