State v. Pettit

Fahrnbruch, J.,

dissenting.

Because the majority of the court abolishes a critical distinction between the crime of second degree murder and the crime of manslaughter committed upon a sudden quarrel, I am compelled to dissent. To be guilty of manslaughter committed upon a sudden quarrel, the majority holds, the killer must commit the slaying with intent to kill.

I contend that Nebraska’s manslaughter statute abrogates the common law and that the majority fails to give sufficient weight to pronouncements of this court, one of which declares that “[t]o come within the provisions of the manslaughter statute, the killing must not have been intentional or with a design to effect death.” State v. Worley, 178 Neb. 232, 236 , 132 N.W.2d 764, 767 (1965).

COMMON LAW

Common law recognized two types of criminal homicide: murder and manslaughter. Murder was defined as “ ‘[w]hen a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being and under the king’s peace, with malice aforethought, either express or implied.’ ” 2 W. Blackstone, Commentaries on the Laws of England § 229 at 2397 (W. Jones ed. 1916), citing 3 E. Coke, Institutes of the Laws of England ch. VII (1797). Manslaughter was divided into two branches, voluntary and involuntary.

Blackstone defined voluntary manslaughter as follows:

If upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter . . . and the law pays that regard to human frailty as not to put a hasty and deliberate act upon the same footing with regard to guilt. So, also, if a man be greatly provoked . . . and immediately kills the aggressor, though this is not excusable se defendendo (in self-defense), since there is no absolute necessity for doing it to preserve himself, yet *467 neither is it murder, for there is no previous malice, but it is manslaughter. But in this, and in every other case of homicide upon provocation, if there be a sufficient cooling time for passion to subside and reason to interpose, and the person so provoked afterwards kills the other, this is deliberate revenge and not heat of blood, and accordingly amounts to murder. . . . Manslaughter, therefore, on a sudden provocation differs from excusable homicide se defendendo (in self-defense) in this: that in one case there is an apparent necessity, for self-preservation, to kill the aggressor; in the other no necessity at all, being only a sudden act of revenge.

(Emphasis supplied.) 2 W. Blackstone, supra, § 225 at 2391-92.

Involuntary manslaughter “differs also from homicide excusable by misadventure in this: that misadventure always happens in consequence of a lawful act, but this species of manslaughter in consequence of an unlawful one.” 2 W. Blackstone, supra, § 226 at 2392.

NEBRASKA STATUTES

In 1866, in a session before statehood, the legislative assembly of the Territory of Nebraska adopted a criminal code including the following homicide definitions:

Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be perpetrated by poisoning, striking, starving, drowning, stabbing, shooting, or by any other of the various forms or means by which human nature may be overcome and death thereby occasioned.

Rev. Stat. § 18(1866).

Manslaughter is the unlawful killing of a human being, without malice, express or implied, and without any deliberation whatever. It must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible or involuntary, in the commission of an unlawful act, or a lawful act without due caution or circumspection.

Rev. Stat. § 21 (1866).

In cases of voluntary manslaughter, there must be a *468 serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.

Rev. Stat. § 22(1866).

The killing must be the result of that sudden, violent impulse of passion, supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as a murder.

(Emphasis supplied.) Rev. Stat. § 23 (1866). (It is noted that Nebraska does not recognize as a defense the concept of “irresistible impulse.” State v. Rincker, 228 Neb. 522 , 423 N.W.2d 434 (1988); State v. Vosler, 216 Neb. 461 , 345 N.W.2d 806 (1984).)

Involuntary manslaughter shall consist in the killing of a human being without any intent so to do, in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner____

Rev. Stat. § 24 (1866).

In 1873, the ninth session of the Legislature of the State of Nebraska adopted a new criminal code, patterned after Ohio’s criminal code. See Morgan v. State, 51 Neb. 672 , 71 N.W. 788 (1897). That code included the following homicide definitions:

If any person shall purposely, and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate any rape, arson, robbery, or burglary, or by administering poison, or causing the same to be done, kill another; or, if any person, by wilful and corrupt perjury, or by subornation of the same, shall purposely procure the conviction and execution of any innocent person; every person so offending shall be deemed guilty of murder in the first degree, and, upon conviction thereof, shall suffer death.

Gen. Stat. § 3(1873).

If any person shall purposely and maliciously, but *469 without deliberation and premeditation, kill another; every such person shall be deemed guilty of murder in the second degree; and on conviction thereof, shall be imprisoned in the penitentiary not less than ten years, or during life, in the discretion of the court.

Gen. Stat. § 4(1873).

If any person shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter; and, upon conviction thereof, shall be imprisoned in the penitentiary, not more than ten years, nor less than one year.

(Emphasis supplied.) Gen. Stat. § 5 (1873).

The 1873 definitions have remained substantially unchanged. Current homicide definitions are found in Neb. Rev. Stat. §§ 28-303 , 28-304, and 28-305 (Reissue 1985), and provide:

A person commits murder in the first degree if he 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 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 29-2520 to 29-2524.

§ 28-303.

A person commits.murder in the second degree if he causes the death of a person intentionally, but without premeditation.

§ 28-304(1).

A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the *470 commission of an unlawful act.

(Emphasis supplied.) § 28-305(1).

The most obvious differences between the 1866 homicide definitions and those adopted in 1873 are the inclusion of second degree murder and the deletion of the voluntary/involuntary manslaughter distinction. In fact, the words “voluntary” and “involuntary” no longer appear in the statute. Legislative history does not exist for this time period; however, it defies logic to assert that the changes made are unimportant.

SECOND DEGREE MURDER AND MALICE

The majority opinion, quoting State v. Hutter, 145 Neb. 798 , 18 N.W.2d 203 (1945), states:

“The different degrees of homicide as defined by our statute are all carved out of murder and manslaughter as known to the common law. No new offense has been created, and no homicide which was not criminal at common law is made so by statute, but it is divided into degrees and the punishment graded to meet the circumstances of the particular case. The decisions of this court clearly hold to this view.”

It is my position that common-law voluntary manslaughter was subsumed by the crime of second degree murder.

The majority states,

“The usual type of voluntary manslaughter involves the intentional killing of another while under the influence of a reasonably-induced emotional disturbance (in earlier terminology, while in a ‘heat of passion’) causing a temporary loss of normal self-control. Except for this reasonable emotional condition, the intentional killing would be murder.”

(Emphasis supplied.) (Quoting 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10(a) (1986).)

LaFave and Scott also point out:

[Voluntary manslaughter is often defined in the cases (and, sometimes, by statute) as if intent to kill were a required ingredient. But, theoretically at least, they might be of the intent-to-do-serious-bodily-injury, or of the *471 depraved-heart, types. Thus — to take the most common sort of voluntary manslaughter, a killing while in a reasonable “heat of passion” — in most cases the defendant intentionally kills the one who has aroused this passion in him. But if, in the throes of such a passion, he should intend instead to do his tormentor serious bodily injury short of death, or if he should, without intending to kill him, endanger his life by very reckless (depraved heart) conduct, the resulting death ought equally to be voluntary manslaughter rather than murder or no crime. The great majority of modern statutes, either by a reference to all cases which would otherwise be murder or by similar general language, take this broad view.

(Emphasis supplied.) Id. at 253. In my view, Nebraska case law and Nebraska’s homicide statutes reflect that Nebraska has done away with the common-law distinctions of voluntary and involuntary manslaughter. Moreover, in Nebraska, a person is only exempt from criminal responsibility when he kills another while the killer is insane ( Neb. Rev. Stat. § 29-2203 (Reissue 1985)) or is justified in killing under Neb. Rev. Stat. §§ 28-1406 to 28-1416 (Reissue 1985), Nebraska’s justification of use of force act. The Legislature has not seen fit to exempt from criminal responsibility a person who kills another upon a sudden quarrel even though the killing was unintentional. The majority has by judicial fiat made such an exemption.

NEBRASKA CASE LAW

The majority holds that Nebraska’s manslaughter statute follows the common law in that it divides manslaughter into two types: voluntary and involuntary. Section 28-305(1) states: “A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act.” (Emphasis supplied.)

In support of its voluntary/involuntary conclusion, the majority relies upon Boche v. State, 84 Neb. 845 , 122 N.W. 72 (1909), in which it was stated that the manslaughter statute did not change the common law. At that time, Nebraska’s manslaughter statute was substantially similar to the one *472 quoted above: “If any person shall unlawfully kill another without malice, either upon a sudden quarrel, or unintentionally, while the slayer is in the commission of some unlawful act, every such person shall be deemed guilty of manslaughter____” Comp. Stat. § 5 (1909).

Boche further held that when the homicide is upon a sudden quarrel, the killing must have been intentional, “but in sudden passion or heat of blood caused by a reasonable provocation .. ..” Boche at 854 , 122 N.W. at 75 . After citing this language, the majority states: “Consequently, we hold that, to sustain a conviction for voluntary manslaughter under § 28-305 (1), that is, a conviction for killing another, without malice, ‘upon a sudden quarrel,’ the State, by evidence beyond a reasonable doubt, must prove that the defendant intended to kill, and did kill, another.” (Emphasis supplied.)

Prior to Boche , in Bohanan v. The State, 15 Neb. 209 , 18 N.W. 129 (1883), although the case was decided upon other grounds, this court considered a refused jury instruction defining manslaughter as “ ‘the unlawful killing of another without malice, either express or implied, which may be either involuntary, upon a sudden heat of passion, or inadvertently, upon the commission of some unlawful act.’ ” (Emphasis supplied.)Id. at 215, 18 N.W. at 131.

The court affirmed the trial court’s refusal to give this instruction, saying:

As a general definition of manslaughter under our statute this was correct. But it was faulty in this, that the last clause had no application to the evidence. There was no pretense that the act was done “inadvertently upon the commission of some unlawful act.” This instruction was, therefore, rightly refused.

(Emphasis supplied.) Id.

The Bohanan court also wrote, “A malicious killing, although done upon a sudden quarrel and in the heat of passion, is murder in the second degree at least.” (Emphasis supplied.) Id. at 214, 18 N.W. at 131. In 1883, at least, this court recognized that Nebraska’s homicide definitions changed the common law.

A decision of this court after Boche, State v. Worley, 178 *473 Neb. 232 , 132 N.W.2d 764 (1965), supports the rationale of Bohanan. In Worley , the court found that the facts of the case would support a conclusion that the killing occurred either upon a sudden quarrel or in the commission of an unlawful act. After making this finding, the court stated, “To come within the provisions of the manslaughter statute, the killing must not have been intentional or with a design to effect death.” (Emphasis supplied.) Id. at 236 , 132 N.W.2d at 767 .

In State v. Drew, 216 Neb. 685 , 344 N.W.2d 923 (1984), the defendant was charged with second degree murder. Drew was convicted of the lesser crime of manslaughter. The defendant claimed that she was acting in self-defense when the decedent was shot and died as a result of a bullet’s striking the victim. The transcript reveals that the trial court, when it came to manslaughter, instructed the jury both upon the sudden quarrel and upon the unlawful act theories. No “intent” instruction was given in regard to manslaughter. Drew claimed the trial court erred in failing to instruct the jury that the burden was upon the State to prove beyond a reasonable doubt that the killing was not accidental. In upholding Drew’s manslaughter conviction, this court declared:

The threatening use of a firearm is an unlawful assault sufficient to convict one of manslaughter, when defined as causing the death of another unintentionally while in the commission of an unlawful act. . . . Similarly, the accidental discharge of a gun, the use of which was not justified under the circumstances, is not a defense to manslaughter when the killing occurred upon a sudden quarrel.

(Emphasis supplied.) Id. at 687-88 , 344 N.W.2d at 925 .

In State v. Rincker, 228 Neb. 522 , 423 N.W.2d 434 (1988), this court affirmed the manslaughter conviction of the defendant. Rincker assigned as error the trial court’s giving a manslaughter instruction, because he did not request such an instruction. We said: “The jury could well have concluded from the evidence that Rincker’s wife was lying on the bed between the victim and Siegrist and that Rincker reacted to that scene without any prior intention to kill the victim. That alone required the trial court to instruct the jury concerning *474 manslaughter.” (Emphasis supplied.) Id. at 534 , 423 N.W.2d at 442 .

In Rincker , this court also pointed out that “the fact remains that he [Rincker], albeit unintentionally, took a life,” id. at 535 , 423 N.W.2d at 442 , and “[t]he manslaughter was an unintentional act; bringing the knife to the scene was an intentional act,” id. at 535 , 423 N.W.2d at 443 . Nowhere does the opinion hold that it was illegal for Rincker to carry the knife to the scene.

These cases indicate that manslaughter in Nebraska does not require an intent to kill, whether the killing be upon a sudden quarrel or in the commission of an illegal act. I contend that Boche , sub silentio, has been overruled and that Nebraska no longer recognizes common-law voluntary and involuntary manslaughter or that intent to kill is an element of voluntary manslaughter.

The majority cites cases from California, Wyoming, New Mexico, and Idaho. Each out-of-state case is distinguishable in that the statutes considered all specifically denote and define voluntary and involuntary manslaughter. As shown above, the Nebraska statutes have not recognized these two types of manslaughter since 1873.

Even though the words “voluntary” and “involuntary” have not been a part of Nebraska’s manslaughter statute since 1873, the majority insists upon reading them into our manslaughter statute.

Prior to adoption of the current criminal code in 1977, the second degree murder statute required that the killing be done “purposely and maliciously.” Neb. Rev. Stat. § 28-402 (Reissue 1975). The new code defined second degree murder as a killing done “intentionally, but without premeditation.” § 28-304. However, malice continues to be judicially required as an element of second degree murder. See State v. Rowe, 214 Neb. 685 , 335 N.W.2d 309 (1983). This construction comports with legislative history which states that the new section is “comparable” to the former section. Summary of Contents L.B. 38, Judiciary Committee, 85th Leg., IstSess. 3 (1977).

It is my contention that “malice” is a judicially supplied essential element in second degree murder to distinguish second *475 degree murder from an intentional killing that is permitted by law under certain circumstances, i.e., a person’s or law enforcement officer’s killing someone where legally permissible under Nebraska’s justification for use of force statutes, §§ 28-1406 to 28-1416.

This court’s first attempt at defining malice after adoption of the 1873 criminal code appears to have been in Milton v. The State, 6 Neb. 136 (1877). That case held that malice is “ ‘[t]he doing a wrongful act intentionally without just cause or excuse.’ 2 Bouv. Law Dict., 91.” 6 Neb. at 143 .

This rule was expanded in Carr v. State, 23 Neb. 749, 756 , 37 N.W. 630 , 633 (1888), which defined malice as

a wicked and mischievous purpose which characterizes the perpetration of a wrongful or injurious act intentionally committed without lawful excuse. It is a mental condition on the part of the actor supposed to exist at the time of the commission of the offense, and is imputed to “doing of an unlawful act intentionally, without just cause or excuse.”

The court in Carr cited Milton , but felt the rule was incomplete. Carr also cites the following definition:

“Malice, in the definition of murder, is imputed to an act done willfully, malo animo, an act wrong in itself, and injurious to another, and for which there is no apparent justification or excuse. . . . The natural or necessary conclusion and inference from such an act, willfully done without apparent excuse, are, that it was done malo animo in furtherance of the wrongful, injurious purpose, previously, though perhaps suddenly, formed, and is, therefore, ‘a homicide with malice of forethought,’ which is the true definition of murder.”

Carr at 755-56, 37 N.W. at 633.

Carr was discussed in Housh v. State, 43 Neb. 163 , 61 N.W. 571 (1895). This court stated that “ ‘ “[m]alice,” in its legal sense, denotes that condition of mind which is manifested by the intentionally doing of a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind.’ ” Id. at 167-68 , 61 N.W. at 572 . The court further stated that the above definition was substantially within the definition approved in Carr.

*476 The definition of malice announced in Housh is nearly the same as the definition stated in State v. Batiste, 231 Neb. 481, 488 , 437 N.W.2d 125, 130 (1989): “ ‘Malice,’ in a legal sense,” denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.” Obviously, the definition of malice has changed very little since 1877 and not at all since 1895.

The difference between second degree murder and manslaughter is significant. Second degree murder is committed when the killing is done intentionally without just cause or excuse, i.e., with malice; manslaughter is committed when the killing is without malice. Regardless of what the common-law definition may have been, malice, in Nebraska, is the intentional doing of an unlawful act without just cause or excuse. If a person is killed intentionally, whether done “upon a sudden quarrel” or not, the act is obviously done with malice, because killing another is an unlawful act unless the killing is exempt under §§ 28-1406 to 28-1416. It is logically impossible to distinguish between a killing done intentionally and one done with malice. A killing committed without malice is one committed unintentionally.

White, J., joins in this dissent.