dissenting.
I respectfully dissent from the majority’s decision because it relies upon State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994). I disagree with Myers, which held that malice is a required element of second degree murder. Therefore, I write to explain my reasons for disagreeing with the holdings in the case at bar, in Myers, and in the cases on which Myers relies for the proposition that malice is an element of second degree murder.
In Nebraska, all crimes are statutory. State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981). *487Prior to the adoption of the present criminal code in 1977, murder in the second degree was described as “purposely and maliciously, but without deliberation and premeditation, killing] another.” Neb. Rev. Stat. § 28-402 (Reissue 1975). The present code, as adopted in 1977, states that “[a] person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.” Neb. Rev. Stat. § 28-304 (Reissue 1989).
In Myers, this court held that the trial court had plainly erred by failing to include malice as an element within the jury instruction on second degree murder, even though the defendant had raised no objection to the instruction. To reach this holding, the court relied on a series of cases which have added malice as an element of second degree murder. The court first relied upon State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), which held that the essential elements of the crime of murder in the second degree were that the killing be done purposely and maliciously.-In turn, Rowe relied upon State v. Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979), which also stated that the essential elements for the crime of murder in the second degree were that the killing be done purposely and maliciously. In Clermont, the court relied upon State v. Johnson, 200 Neb. 760, 266 N.W.2d 193 (1978), which included malice as an element of the crime. However, at the time Johnson was decided, second degree murder was statutorily defined as “purposely and maliciously, but without deliberation and premeditation, kill[ing] another.” § 28-402 (Reissue 1975).
The Legislature subsequently amended § 28-402 and purposely omitted malice from the elements of second degree murder. In explaining the revisions to the criminal code in 1977, 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, L.B. 38, Judiciary Committee, 85th *488Leg., 1st Sess. 3 (Jan. 24-26, 1977). Section 19 of L.B. 38 was codified as § 28-304, which became effective January 1, 1979. See 1978 Neb. Laws, L.B. 748, § 54.
The subsequent cases in which this court has relied upon Johnson and Clermont have added the element of malice to second degree murder, although malice was specifically omitted from the criminal code when it was revised. In my opinion, malice has not been an essential element of the crime of murder in the second degree since January 1,1979.
Rowe was decided June 17, 1983. Because the murder for which Rowe was charged and ultimately convicted occurred May 1, 1980, Rowe was charged under § 28-304(1) for “causing] the death of a person intentionally, but without premeditation.” Although the crime occurred after the effective date of the new statute, this court, relying on Clermont, held that the essential elements of the crime of murder in the second degree were that the killing be done purposely and maliciously. The Legislature had purposely omitted malice as an element of the crime, and Rowe, in my opinion, incorrectly included “maliciously” as an element of second degree murder.
State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), stated that this court has continued to require malice as an element of second degree murder even though malice is not specified by statute. The court concluded that by omitting the element of malice from the instruction on second degree murder, the instruction, in effect, became one for the crime of intentional manslaughter as defined by State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989). This conclusion is now eroded by the fact that we have since overruled the holding in Pettit that “manslaughter is an intentional killing of another under Nebraska law.” State v. Jones, 245 Neb. 821, 832, 515 N.W.2d 654, 660 (1994). We stated in Jones, “According to Pettit, the only element that distinguishes manslaughter upon a sudden quarrel and second degree murder is the element of the sudden quarrel, since both killings are intentional.” 245 Neb. at 829, 515 N.W.2d at 658. “Since our statutes define manslaughter as a killing without malice, there is no requirement of an intention to kill in committing manslaughter. The distinction between second degree murder and manslaughter upon a sudden quarrel *489is the presence or absence of an intention to kill.” Jones, 245 Neb. at 830, 515 N.W.2d at 659.
Therefore, what distinguishes second degree murder from manslaughter is the element of intent. In my opinion, malice is therefore not an element of either manslaughter or second degree murder.
In State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980), we stated that the Legislature, in enacting a statute, is presumed to have known the preexisting law. The court must conclude that in enacting an amendatory statute, the Legislature intentionally changed the language for the purpose of effecting a change in the law itself. With the amendment of the statute defining second degree murder, there is no presumption. The Judiciary Committee stated that it was changing the law by deleting the terms “purposely” and “maliciously” and requiring that the cause of death of a person need only be done intentionally.
I disagree with the majority’s statement that malice has consistently been held to be an element of second degree murder in this state since State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983). Where a statute has been judicially construed and that construction has not evoked amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of its intent. Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). This rule applies where a statute is ambiguous. Where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983), cert. denied 484 U.S. 872, 108 S. Ct. 206, 98 L. Ed. 2d 157 (1987). The language of the second degree murder statute is plain — malice is not an essential element.
As recently as State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992), malice was not described as an essential element of second degree murder. The court stated:
Under Nebraska law, second degree murder is defined as causing the death of another intentionally, but without premeditation. § 28-304(1). ... In order to convict a person of second degree murder, the State is required to prove all three elements — the death, the intent to kill, and *490causation — beyond a reasonable doubt.
(Emphasis supplied.) Cave, 240 Neb. at 789, 484 N.W.2d at 464.
In Cave, the defendant was charged with first degree murder, attempted first degree murder, and two counts of use of a firearm in the commission of a felony. Following a bench trial, the court found the defendant guilty of both counts of use of a firearm in the commission of a felony and guilty of the lesser-included offenses of second degree murder and attempted second degree murder. In affirming the convictions, this court did not describe malice as an element of second degree murder.
This court, in rejecting Cave’s arguments, relied upon Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). Patterson shot and killed his estranged wife’s former fiance after finding them together. He was charged with second degree murder. In New York, there were two elements of second degree murder: “ ‘intent to cause the death of another person’ ” and “ ‘causing] the death of such person or of a third person.’ ” Patterson, 432 U.S. at 198. Malice aforethought was not an element of the crime. Id. In Patterson, the crime of second degree murder had been rewritten as part of a recent revision of the state’s criminal code. The second degree murder statute in New York is similar to Nebraska’s statute, and malice is not an element of the crime in New York.
The trial court instructed the jury that if it found beyond a reasonable doubt that Patterson had intentionally killed the victim, but that Patterson proved by a preponderance of the evidence that he had done so under the influence of extreme emotional disturbance, it must find him guilty of manslaughter rather than murder. Manslaughter was defined as the intentional killing of another “ ‘under circumstances which do not constitute murder because [the defendant] acts under the influence of extreme emotional disturbance.’ ” Patterson, 432 U.S. at 199. The jury found Patterson guilty of murder. On appeal to the U.S. Supreme Court, Patterson argued that the New York murder statute was unconstitutional. The U.S. Supreme Court rejected this argument, stating:
We cannot conclude that Patterson’s conviction under *491the New York law deprived him of due process of law. The crime of murder is defined by the statute... as causing the death of another person with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime____
... It seems to us that the State satisfied the mandate of [In re] Winship[, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970),] that it prove beyond a reasonable doubt “every fact necessary to constitute the crime with which [Patterson was] charged.”
Patterson, 432 U.S. at 205-06. The U.S. Supreme Court declined to adopt as a constitutional imperative that a state must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of the accused. The Court concluded that the New York Legislature’s decision to impose upon a defendant the burden of proving additional circumstances which lessen his culpability did not violate due process.
In State v. Cave, 240 Neb. 783, 789-90, 484 N.W.2d 458, 464 (1992), the court stated:
In order to convict a person of second degree murder, the State is required to prove all three elements — the death, the intent to kill, and causation — beyond a reasonable doubt. None of the elements is presumed upon proof of the others, nor is any element presumed in the absence of proof by the defendant of the converse of that element. As in New York, the fact that a homicide occurs “upon a sudden quarrel” is an additional circumstance which serves to mitigate an intentional killing. [Citations omitted.]
It is clear that whether a state’s homicide laws violate due process depends a great deal upon the manner in which a state defines the crime charged. [Citations omitted.] Given the similarity between the second degree murder and manslaughter statutes of this state and those of New York, it is by no means clear that in a prosecution for second degree murder, the burden is on the State to *492prove the absence of a sudden quarrel beyond a reasonable doubt. We do not decide the question, however, because even assuming the State carried such a burden, the evidence is sufficient to sustain the convictions in this case.
Cave is significant for two reasons. First, it shows that this court has not consistently held that malice is an element of second degree murder. Cave held that the death, the intent to kill, and causation are the three elements required to convict a person of second degree murder. See, also, Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). Second, Cave cited Patterson, which reinforces the fact that Nebraska’s second degree murder statute, § 28-304, does not violate due process if malice is not an element of the crime. New York’s second degree murder statute is similar to Nebraska’s, and malice is not included in the language of either state’s statute.
The New York statute which placed upon Patterson the burden of proving by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional distress in order to reduce the crime to manslaughter did not deprive Patterson of due process. I believe Patterson addresses the concern expressed by the majority in the present case that defining second degree murder without malice would make illegal the performance of many noncriminal acts, e.g., a police officer who kills in the line of duty can be said to have caused the death of a person intentionally.
The majority asserts that requiring a police officer who is charged with second degree murder for causing a death in the line of duty to use as a defense the “justification statutes, ” Neb. Rev. Stat. §§ 28-1406 to 28-1416 (Reissue 1989), would unconstitutionally shift the burden of proof to the police officer. I disagree. First, the burden of proving circumstances which are an affirmative defense or which justify or lessen culpability is not the issue before us in this case. Second, the justification statutes serve as affirmative defenses to a killing. An affirmative defense does not serve to negate any facts of the crime which the State must prove, i.e., intending to cause the death of another, but without premeditation. The elements to *493be proven remain the death, the intent to kill, and causation. State v. Cave, supra. “Long before Winship, the universal rule in this country was that the prosecution must prove guilt beyond a reasonable doubt. At the same time, the long-accepted rule was that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant.” Patterson, 432 U.S. at 211. The majority in the present case expressly states that it in no manner suggests that the justification statutes are invalid.
The majority suggests that absent malice, § 28-304 would be unconstitutionally vague and overbroad because due process requires that criminal statutes be clear and definite and that ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statutes what conduct will render them liable to punishment. The majority states that if malice is not an element of second degree murder, the homicide statutes do not make sense. I disagree. In Patterson, the U.S. Supreme Court concluded that Patterson’s conviction under New York law did not deprive him of due process of law. No facts beyond the death, intent, and causation are either presumed or inferred in order to constitute a murder. Patterson v. New York, supra.
Regardless of the number of times this court has relied upon State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), we cannot legislate by judicial fiat that malice is an essential element of second degree murder. We simply do not have the power to do so. See Neb. Const, art. II, § 1. The Legislature deliberately removed malice from the second degree murder statute when the criminal code was revised, and malice is not an essential element of the crime until the Legislature says that it is.
In the case at bar, this court also holds that the information must contain the element of malice or the charge is insufficient. I disagree. Where the information alleges the commission of a crime using the language of the statute defining that crime, the charge is sufficient. State v. Bowen, 244 Neb. 204, 505 N.W.2d 682 (1993). The majority points out that the purpose of an information is to inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense and also be able to plead that the judgment *494rendered thereon acts as a bar to later prosecution for the same offense. See State v. Laymon, 239 Neb. 80, 474 N.W.2d 458 (1991).
I fail to see how the absence of the word “maliciously” causes the information to be insufficient to comport with due process. Was Grimes denied procedural due process because the information did not say he “maliciously” caused the death of James P. Kirby? Grimes was charged by information as follows: “[0]n or about the 7th day of September, 1992, CRAIG T. GRIMES late of the county of Douglas and State of Nebraska, then and there being, did then and there intentionally, but without premeditation, kill James P. Kirby.” The statutory elements of the crime have been described in the information. The State complied with procedural due process by charging Grimes in the language of the statute.
We have held that Nebraska’s criminal procedure does not require a comprehensive and particularized factual description of elements of the offense charged in the information or complaint against a defendant. Using the language of the statute defining that crime or terms equivalent to such statutory definition is sufficient. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).
The majority requires malice as an element of second degree murder despite the fact that the Legislature expressly removed the word “maliciously” from the second degree murder statute by amendment in 1977. Placing malice back into the statute is judicial legislation in violation of article II, § 1, of the Nebraska Constitution.
The information in the case at bar charges the elements necessary to constitute the offense intended to be punished. Since malice is not an element of second degree murder as defined by § 28-304, it was not prejudicial error for the trial court to fail to instruct the jury that malice was an element of second degree murder. Malice is not an element of the crime for which Grimes was charged, and I would affirm the conviction and sentence.