overruling, State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989)
How later courts described this case
- overruling, State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989)
- jury instruction failing to include malice as element of second degree murder prejudicially erroneous
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Burlison, 255 Neb. 190 (1998)
245 Neb. 821 , 515 N.W.2d 654 (1994), overruled on other grounds, State v. Smith, 282 Neb. 720 , 806 N.W.2d 383 (2011), and State v. Burlison, 255 Neb. 190 , 583 N.W.2d 31
The opinion
*833 Caporale, J.,
concurring in part, and in part dissenting.
I agree that the trial court’s omission of the element of malice in its definition of second degree murder requires that this cause be remanded for a new trial. See, State v. Myers, 244 Neb. 905 , 510 N.W.2d 58 (1994); State v. Franklin, 241 Neb. 579 , 489 N.W.2d 552 (1992); State v. Dean, 237 Neb. 65 , 464 N.W.2d 782 (1991); State v. Trevino, 230 Neb. 494 , 432 N.W.2d 503 (1988); State v. Keithley, 227 Neb. 402 , 418 N.W.2d 212 (1988); State v. Rowe, 214 Neb. 685 , 335 N.W.2d 309 (1983).
However, I disagree with the majority’s view that State v. Pettit, 233 Neb. 436 , 445 N.W.2d 890 (1989), was wrongly decided. Its careful analysis of the manslaughter statute, Neb. Rev. Stat. § 28-305 (Reissue 1989), is correct, and I adhere to it.
Hastings, C. J., joins in this concurrence and dissent.