# State v. Burlison

> Nebraska Supreme Court · August 14, 1998 · 255 Neb. 190

URL: https://www.frixlaw.com/law-library/cases/9691550

## Case

- **Full name:** State of Nebraska, Appellee, v. Gary L. Burlison, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** August 14, 1998
- **Citations:** 255 Neb. 190; 583 N.W.2d 31; 1998 Neb. LEXIS 194
- **Precedential status:** Published
- **Opinion:** Concurrence by Wright
- **Judges:** Caporale, Wright, Connolly, Gerrard, Stephan, McCormack, White
- **Cited by:** 118 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9691550

## How later opinions describe it (automated extraction)

- holding that “construction of § 28-304(1) to include only those elements which the Legislature specifically included in its text does not result in constitutional infirmity”
- noting that second degree murder occurs when one causes death of another intentionally, but without premeditation

## Opinion text

Wright, J.,
concurring.
I write to address the assertions that the Legislature acquiesced in this court’s holding that malice is an essential element of second degree murder and that the majority opinion herein, which overrules that holding, is based solely upon the makeup of the court, thus causing the law to lose predictability and become arbitrary and capricious.
*201 In Nebraska, all crimes are statutory. In 1977, the Legislature amended Neb. Rev. Stat. § 28-402 (Reissue 1975) and purposely omitted malice from the elements of second degree murder. In explaining the revisions to the criminal code, the Judiciary Committee’s summary of L.B. 38 stated:
Section 19 is comparable to Section 28-402 or second degree murder. It differs from the present section, which requires the killing to be purposely and maliciously, whereas the new code requires that the cause of death of a person need only be done intentionally. The penalty under existing law and this section is the same, i.e., 10 years to life imprisonment.
Summary of Contents, 85th Leg., 1st Sess. 3 (Jan. 24-26, 1977). Section 19 of 1977 Neb. Laws, L.B. 38, was codified as Neb. Rev. Stat. § 28-304 (Reissue 1995), which became operative January 1, 1979. See 1978 Neb. Laws, L.B. 748. Following this change in the second degree murder statute, § 28-304 required no statutory construction, because the Legislature had intentionally removed the element of malice from second degree murder and the remaining elements were unambiguous.
Presently, Nebraska’s second degree murder statute states that “[a] person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.” § 28-304. Beginning with State v. Rowe, 214 Neb. 685 , 335 N.W.2d 309 (1983), and continuing until State v. Myers, 244 Neb. 905 , 510 N.W.2d 58 (1994), this court affirmed second degree murder convictions charged in the language of § 28-304. During that time, no defendant challenged the absence of malice from an information or jury instructions.
However, in Myers, this court held that the omission of malice from the jury instruction on second degree murder was prejudicially erroneous and plain error. In Myers, 244 Neb. at 908 , 510 N.W.2d at 63 , we stated: “[Tjhis court has continued to require malice as an element of second degree murder.” We reached this conclusion despite the fact that the Legislature had deliberately removed malice as an element of second degree murder.
An appellate court is empowered to construe a statute, but it may not assume the role of the Legislature. Therefore, judicial *202 construction is constitutionally permissible, but judicial legislation is not. Insertion of the element of malice into § 28-304 was not a judicial construction of the legislative intent of the statute, but amounted to judicial legislation, which violated article II, § 1, of the Nebraska Constitution. Thus, the majority has properly overruled those cases which held that malice was an element of second degree murder.
As to the issue of legislative acquiescence, in State v. Grimes, 246 Neb. 473, 484 , 519 N.W.2d 507, 516 (1994), the court stated: “[Djefining second degree murder without malice would make the performance of many noncriminal acts illegal. . . . Therefore, absent malice, Neb. Rev. Stat. § 28-304 (Reissue 1989), would be unconstitutionally vague and overbroad.” In Grimes , the court advised the Legislature that any subsequent amendment to § 28-304 which would make it more obvious that malice had intentionally been removed would be declared unconstitutional. Thus, the Legislature’s failure to amend § 28-304 cannot evidence legislative acquiescence to the court’s declaration that malice was an element of second degree murder.
Connolly and Gerrard, JJ., join in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9691550. Public record. Not legal advice.