dissenting.
I dissent from the opinion of the majority. Basing his claim on State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), Randall claims the amended information, which did not charge malice as an element of second degree murder, failed to establish a prima facie element of the crime.
*722Grimes held that
[t]he essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously. 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. Ettleman, 229 Neb. 220, 425 N.W.2d 894 (1988); State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986); State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983). This has been the law in this state since 1983.
246 Neb. at 483, 519 N.W.2d at 515.
Effective January 1, 1979, the Legislature defined the crime of second degree murder as the intentional killing of another without premeditation. See Neb. Rev. Stat. § 28-304 (Reissue 1989). On November 22, 1979, Randall and his accomplices beat the victim and placed him in the trunk of a car. They later removed him from the trunk, beat him repeatedly over the head with a metal bar, and then threw him off a bridge into the water.
Randall was charged with first degree murder, but pursuant to a plea agreement, he pled guilty to second degree murder. Randall asserts that his conviction is void because the amended information did not contain the element of malice and because he received ineffective assistance of counsel. At the time of his conviction, neither this court nor the Legislature recognized malice as an element of second degree murder. Randall has not shown that his counsel was ineffective or how he could have been prejudiced by pleading guilty to second degree murder to avoid a first degree murder conviction and the possibility of a death sentence.
Randall now asks for the opportunity to present a reason for murdering the victim. If he had a just excuse for the killing, he should have gone to trial; instead, he pled guilty to a lesser charge. He is not entitled to a new trial. His plea was counseled and voluntary. I see no justifiable reason to grant Randall a new trial.
Connolly and Gerrard, JJ., join in this dissent.