dissenting.
Because this court holds, as a matter of law, that the jury instructions given in Ryan’s trial violated his rights under the U.S. and Nebraska Constitutions, I am compelled to dissent and write separately.
It is obvious that the Legislature, in revising the Nebraska Criminal Code in 1977, intended to remove malice, the lack of just cause or excuse, as an element of second degree murder. As a corollary to that revision, the Legislature had previously set forth a procedure in the criminal code whereby a defendant could raise justification or excuse as an affirmative defense in cases where the facts warrant such a defense. For the reasons that follow, I do not agree with the majority’s assertion that the legislative act, which affirmatively removed malice as an element of second degree murder, creates “the absurd consequence of an overbroad murder statute making certain legal acts illegal. ”
Furthermore, requiring a defendant to raise the issue of justification or excuse as defined by our statutes, Neb. Rev. Stat. §§ 28-1406 through 28-1416 (Reissue 1989), does not unconstitutionally shift the State’s burden of proving every *242element of the crime charged in a criminal case.
Finally, even if Ryan were due a jury instruction explicitly stating that the jury needed to find Ryan acted with malice, on the facts in this case, not receiving such an instruction was clearly harmless error.
I. MALICE AS ELEMENT OF SECOND DEGREE MURDER
The majority opinion asserts that without the element of malice or mens rea, the second degree murder statute of which Ryan was convicted would be of doubtful validity and, perhaps, unconstitutional. I take exception with this underlying proposition, set forth by the majority, for several reasons.
1. Statutory Construction
Neb. Rev. Stat. § 28-304(1) (Reissue 1989) defines second degree murder as “causing] the death of a person intentionally, but without premeditation.” Malice is the intentional doing of a wrongful act without just cause or excuse. State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994).
The meaning of the word “malice” added to the statutory text of § 28-304(1) adds nothing to the statutory definition of second degree murder which would not exist through the use of well-established principles of statutory construction. Although a penal statute must be strictly construed, it is to be given a sensible construction, and general terms are to be limited in their construction and application so as to avoid injustice, oppression, or an absurd consequence. State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994). Where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. Id.
(a) Presumption That Legislature Knows the Law
There are no common-law crimes in Nebraska. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986); Kinnan v. State, 86 Neb. 234, 125 N.W. 594 (1910). Within constitutional boundaries, the Legislature is empowered to define a crime. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), overruled on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
*243In construing a penal statute, a court cannot supply language which is absent from the statutory definition for a criminal offense. State v. Schaaf, supra. Because there are no common-law crimes in this state, we must resort to only common-law definitions where general terms are used to designate crime. State v. Hauck, 190 Neb. 534, 209 N.W.2d 580 (1973); State v. Coomes, 170 Neb. 298, 102 N.W.2d 454 (1960).
The Legislature is presumed to have known the preexisting law, and in enacting an amendatory statute, we are compelled to conclude that the language was intentionally changed for the purpose of effecting a change in the law itself. State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980).
(b) Revisions to Criminal Code
Nebraska, like many other states, made significant revisions to its criminal code beginning in the early 1970’s. In 1972, L.B. 8, a proposed complete revision of the Nebraska Criminal Code, first came before the Judiciary Committee. In 1977, after much study and debate, the Legislature passed 1977 Neb. Laws, L.B. 38, the framework for what is now the Nebraska Criminal Code. The only change effected by the 1977 criminal code revision on our homicide statutes was to remove from our former second degree murder statute the requirement that second degree murder is a killing done “purposely and maliciously, but without deliberation and premeditation,” replacing it with the requirement that murder in the second degree is causing the death of another person “intentionally, but without premeditation.” Compare Neb. Rev. Stat. § 28-402 (Reissue 1975) with § 28-304. In contrast, the 1977 revision of the criminal code left undisturbed the requirement that malice is an element of first degree murder. Compare Neb. Rev. Stat. § 28-401 (Reissue- 1975) with Neb. Rev. Stat. § 28-303 (Reissue 1989). In addition, the revised manslaughter statute continued to specifically require that manslaughter is a killing done without malice. Compare Neb. Rev. Stat. § 28-403 (Reissue 1975) with Neb. Rev. Stat. § 28-305 (Reissue 1989).
Thus, it is clear that the Legislature, in the 1977 revision of the criminal code, contrary to the majority’s assertion, was not *244silent as to whether malice remained an element of second degree murder. By removing malice from the statutory text of only the second degree murder statute, the Legislature acted affirmatively with the intention of changing only the second degree murder statute and eliminating malice as an element of that particular crime.- The effect of this change can only be examined within the context of the entire criminal code.
In 1969, the Legislature enacted Nebraska’s first justification statute, the “Nebraska Self-Defense Act,” Neb. Rev. Stat. § 29-114 (Cum. Supp. 1969). State v. Goodseal, 186 Neb. 359, 365, 183 N.W.2d 258, 262 (1971). Prior to that time, self-defense and other justification defenses in homicide cases were defined by the common law in this state. This court declared § 29-114 unconstitutional in State v. Goodseal, supra. In response, the Legislature immediately drafted what was then the justification statutes from the Model Penal Code into 1971 Neb. Laws, L.B. 895. Judiciary Committee Hearing, L.B. 895, 82d Leg., 1st Sess. 1-6 (April 13, 1971). This bill became law in 1972 and is currently codified at §§ 28-1406 through 28-1416.
The effect of this legislation was to change self-defense and other justifications or excuses for the use of deadly force from common-law defenses to statutorily defined affirmative defenses. See § 28-1416(1). The nature of an affirmative defense is such that the defendant has the initial burden of going forward with evidence of the defense. When the defendant has produced sufficient evidence to raise the defense, the issue is then one which the State must disprove beyond a reasonable doubt. See, State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993); State v. Connely, 243 Neb. 319, 499 N.W.2d 65 (1993).
As a practical matter, the evidence necessary to raise an affirmative defense may be adduced either by the defendant’s witnesses or in the State’s case in chief without the necessity of the defendant presenting evidence. A defendant is not required to plead and give notice of ah affirmative defense of justification or self-defense. State v. Clayburn, 223 Neb. 333, 389 N.W.2d 314 (1986). The defendant need only adduce more than a scintilla of evidence to satisfy this initial burden. State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992).
*245In this context, the effect of the legislative act, which affirmatively removed malice as an element of second degree murder within a short time after the Legislature statutorily defined justification defenses, was to relieve the prosecution of an unnecessary burden in those cases where justification or self-defense was not at issue. In other words, Nebraska law intended to treat an accused who intentionally, but without premeditation, killed another as one guilty of second degree murder unless and until the accused raised the issue of just cause or excuse. Once the accused raises the issue of justification, then the burden is on the State to disprove beyond a reasonable doubt the existence of justification for the use of deadly force.
Instructive on this issue is State v. McCullum, 98 Wash. 2d 484, 656 P.2d 1064 (1983). The State of Washington adopted revisions to its criminal code and, in particular, its homicide statutes in 1975. In McCullum, the defendant claimed the trial court’s jury instruction unconstitutionally shifted the burden of proof concerning his claim of self-defense. In analyzing the statutory allocation of burden of proof as to self-defense, the Washington Supreme Court first found that under their former criminal code, the state had the burden of proving, beyond a reasonable doubt, the absence of self-defense in a murder prosecution. Washington’s former first degree murder statute included the provision that a killing was murder unless it was justifiable or excusable. This language was removed by the Washington Legislature in 1975. In addition, the legislature made self-defense an affirmative defense to homicide in the 1975 revisions to Washington’s criminal code.
The court in McCullum reasoned that when the legislature removed the language, “unless it was ‘excusable or justifiable’ ” from Washington’s former murder statute, it did not relieve the state of its burden to prove, beyond a reasonable doubt, that a killing was without justification or excuse, when at the same time the legislature made self-defense an affirmative defense without allocating a burden of proof to the defendant. Id. at 491, 656 P.2d at 1069.
As a matter of statutory construction, the Washington court presumed that the legislature did not engage in a meaningless *246act by removing the language of justification or excuse from the former murder statute. Thus, the court concluded that with these changes in the criminal code, the legislature intended to relieve the prosecution of the necessity of pleading the absence of self-defense.
[T]he Legislature merely relieved the State of the time-consuming and unnecessary task of alleging and proving negative propositions which may not be involved in each case. Once the issue of self-defense is properly raised, however, the absence of self-defense becomes another element of the offense which the State must prove beyond a reasonable doubt.
Id. at 493-94, 656 P.2d at 1070.
I find the reasoning of the Washington Supreme Court to be persuasive in the instant case. It seems clear that the Nebraska Legislature, in amending our second degree murder statute, intended to remove the words “purposely” and “maliciously” and, instead, define second degree murder as intentionally (as that word must be understood within the context of the criminal code) causing the death of another, without premeditation.
Moreover, the Legislature, by making justification or excuse for the use of force a statutory defense, intended to treat any intentional killing as unlawful unless the defendant, by any means possible, raised the issue of justification or excuse. If any effect is to be given the legislative act of removing malice from Nebraska’s second degree murder statute, it must be that, as in Washington, the Legislature intended to relieve the prosecution of the burden of pleading and proving the lack of justification or excuse when the defendant has not first raised the issue.
(c) § 28-304(1) Is Not Unconstitutionally Overbroad
A series or collection of statutes pertaining to a certain subject matter, statutory components of acts which are in pari materia, may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of an act are consistent, harmonious, and sensible. State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
The majority asserts that malice must be inserted as a material element of second degree murder to avoid “the absurd *247consequence of an overbroad murder statute making certain legal acts illegal.” In support, the majority claims law enforcement officers forced to kill in the line of duty, prosecutors who successfully persuade a court to sentence a convicted murderer to death, the executioner who carries out any such sentence, and members of the Nebraska Board of Pardons could possibly be charged with second degree murder when performing their respective governmental duties.
However, the mere fact that one is a public officer raises the issue of justification for the use of deadly force. Nebraska’s homicide statutes and justification for the use of force statutes must be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of our criminal code are consistent, harmonious, and sensible.
Thus, even though a public officer may intentionally, but without premeditation, take the life of another, the operation of § 28-1408, justification for the use of force in execution of a public duty, would require that, merely because an individual is a public officer, the State must prove, beyond a reasonable doubt, that such public officer was acting outside his or her duties or functions or outside the judgment or order of a competent court or tribunal. Clearly, police officers, corrections officials, members of the Nebraska Board of Pardons, and, for that matter, judges who sentence first degree murderers to death and Supreme Court justices who set execution dates, do not need malice inserted into the second degree murder statute to protect them in carrying out their public function.
It is axiomatic that a criminal code is only intended to proscribe criminal conduct. Thus, each and every statute in a criminal code ought to be construed to reach only criminal conduct, that is, conduct which is unlawful, unjustified, or inexcusable. The necessary corollary to this axiom is that when a criminal statute proscribes intentional conduct, it can only mean that the statute proscribes intentional conduct which is unlawful, unjustified, or inexcusable, in other words, intentional conduct done with a criminal intent:
This is precisely the manner in which the Legislature has directed the courts to construe the criminal code. Neb. Rev. *248Stat. § 28-102 (Reissue 1989) delineates the purposes and principles of construction for the criminal code. It states, “The general purposes of the provisions governing the definition of offenses are: (1) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests . . . .” (Emphasis supplied.) Thus, the criminal code is only meant to reach intentional conduct, done with a criminal intent, that is not justified or excused by the statutory defenses contained in the criminal code.
Furthermore, the jury in this case was instructed that it must find that Ryan acted with the requisite criminal intent as a material element of the crime, not some abstract or undefined intent. Instruction No. 11 stated, in pertinent part:
Intent or purpose is a mental process and it therefore generally remains hidden within the mind where it is conceived. ... It may, however, be inferred from the words and acts of each defendant and from the facts and circumstances surrounding his conduct. ... It is for you to determine from all of the facts and circumstances in evidence whether or not each defendant had the criminal intent or purpose required by [the] Instruction^] [concerning either first degree murder, second degree murder, or manslaughter]. If you have any reasonable doubt with respect to either, with regard to a defendant, you must find the defendant not guilty of murder in the first degree or the lesser included offense of murder in the second degree; remembering that you must consider the guilt or innocence of each defendant individually.
(Emphasis supplied.) Accordingly, contrary to the majority’s assertion, the jury was informed that it is only criminal intentional conduct which can support a guilty verdict and that if it was to find Ryan guilty, it must find the existence of criminal intent with respect to Ryan’s conduct beyond a reasonable doubt.
Thus, taken in its proper statutory context, § 28-304(1) can only mean that second degree murder is intentionally, meaning with the requisite criminal intent, but without premeditation, causing the death of another — unless such intentional act is justified or excused under §§ 28-1406 through 28-1416. It is *249incumbent upon the defendant to raise a justification defense if such a defense exists in a case, and it is not necessary for this court to judicially add the element of malice to the second degree murder statute after the Legislature revised the criminal code in the 1970’s.
Furthermore, there is a practical problem if the majority’s position on overbreadth is taken to its logical conclusion. If the second degree murder statute is overbroad without judicially supplying the element of malice, then there are many other statutes in our criminal code which may also be constitutionally suspect unless an additional “mens rea” element is judicially added to the statutory definition of those crimes.
For example, Neb. Rev. Stat. § 28-308(1) (Reissue 1989) states, “A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person.” Thus, without limiting the conduct causing serious bodily injury to only that intentional or knowing conduct which maliciously (meaning without just cause or excuse) causes serious bodily injury, the statute proscribing first degree assault is potentially as overbroad as the second degree murder statute.
The first degree assault statute is just one of many statutes in the criminal code which, like second degree murder, proscribe intentional conduct that is harmful to other persons without the necessity of including malice in its statutory definition. It is my contention that when the intentional conduct criminal statutes are construed in light of § 28-102 and the justification statutes, a court is not compelled to add malice as a necessary element of such crimes in order to withstand a constitutional overbreadth challenge. To construe the intentional conduct statutes otherwise would surely lead to absurd consequences.
2. Shifting of Burden of Production Is Not Unconstitutional
The majority also asserts:
If malice is not read into § 28-304(1), individuals who commit legal acts, though punishable under the statute, would have to defend themselves through an affirmative defense of justification. . . . This results in a shifting of *250the State’s burden of proving every element of the crime charged in a criminal case.
Contrary to the majority’s assertion, there is nothing in the plain language of our justification for the use of force statutes which evinces a legislative intent to shift the ultimate burden of proof concerning the lack of justification or excuse away from the State. Moreover, neither the legislative history of Nebraska’s justification statutes nor our case law construing the justification statutes, supports the majority’s position that the justification statutory scheme relieves the State of its burden of proving beyond a reasonable doubt the lack of justification or excuse when raised by a defendant.
As stated previously, Nebraska’s justification for the use of force statutes is taken directly from the Model Penal Code. Comments to article 3 of the Model Penal Code state, concerning an affirmative defense, that “the prosecution can be silent on the question of justification unless and until evidence is adduced (typically by the defendant) in support of the defense.” Model Penal Code § 3.01, comment at 6 (1985).
Further support can be found in the Model Penal Code section concerning affirmative defenses in general. For defenses “denominated affirmative by the Code or another statute, or involving a matter of justification ‘peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence,’ the state’s burden does not arise unless there is some evidence supporting the defense.” Model Penal Code § 1.12, explanatory note at 187 (1985).
More importantly, several U.S. Supreme Court cases do not support the majority’s contention that requiring a defendant to raise justification as an affirmative defense is an unconstitutional shifting of the State’s burden of proof. In Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), a case in which the defendant was convicted of second degree murder for the shooting death of a neighbor, the Supreme Court stated that “[pjroof of the nonexistence of all affirmative defenses has never 'been constitutionally required . . . .” It is only the burden of persuasion concerning an element of the crime which remains with the State at all times, not necessarily the burden of *251production. Patterson v. New York, supra.
In addition, in Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987), the Court held an Ohio statute constitutional which, in fact, shifted the burden of persuasion and required a defendant to prove by a preponderance of the evidence the existence of self-defense in a murder case. The Court found that under the Ohio statutory scheme, such an allocation would not relieve the state of its burden, to prove the elements of the crime beyond a reasonable doubt. Martin v. Ohio, supra.
Even Justice Lewis Powell’s dissents in Patterson and Martin clearly acknowledge that it is the burden of persuasion that the state is required to bear beyond a reasonable doubt under the holdings of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 508 (1975), not the burden of production. Thus, concerning this particular issue, there is unanimity of opinion on the U.S. Supreme Court.
There is a clear constitutional distinction between casting the burden of production on an accused and casting the burden of persuasion on an accused. In discussing affirmative defenses, LaFave and Scott write:
As to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense — e.g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative defenses— unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a defense, in which case the matter of defense is properly an issue though the defendant himself produces nothing further to support it. Experience shows that most people who commit crimes are sane and conscious; they are not compelled to commit them; and they are not so intoxicated that they cannot entertain the states of mind which their crimes may require. Thus it makes good sense to say that if any of these unusual features are to be injected into the case, the defendant is the one to do it; it would not be sensible to make the prosecution in all cases prove the defendant’s *252sanity, sobriety and freedom from compulsion. . . . Nothing in Mullaney or Patterson casts any doubt upon the constitutionality of so allocating the burden of production.
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.8(c) at 72 (1986).
Therefore, the fact that the State of Nebraska requires an accused to raise the issue of justification neither relieves the State of proving guilt beyond a reasonable doubt of every element of a crime, nor does the requirement force the defendant to forgo the presumption of innocence in violation of his rights under the U.S. and Nebraska Constitutions.
II. HARMLESS ERROR ANALYSIS
The jury instruction for second degree murder given in this case informed the jurors that if they find the State proved, beyond a reasonable doubt, that while in Richardson County, Ryan, either alone or while aiding and abetting another, intentionally, but without premeditation, killed Thimm, then they must find Ryan guilty of second degree murder done purposely and maliciously, but without deliberation and premeditation.
The majority asserts this instruction created a mandatory presumption requiring the jury to find Ryan acted with malice, that is, without just cause or excuse, upon finding Ryan acted intentionally, but without premeditation in killing Thimm. Thus, the majority concludes the instruction as given relieved the State of its burden to prove beyond a reasonable doubt each element of the crime charged, to wit: proof of malice, meaning proof of the lack of just cause or excuse. Moreover, the majority contends that this error was not harmless beyond a reasonable doubt because in addition to not being instructed that malice is an element of second degree murder, the jurors were also not instructed to find beyond a reasonable doubt the existence of the facts which give rise to the presumption of malice.
“Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.” Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 85 L. *253Ed. 2d 344 (1985). Thus, the issue for our consideration is not whether the instruction as given created a mandatory presumption, but, rather, whether the instruction relieved the State of the burden of persuasion on an element of the offense of second degree murder. An analysis of the facts reveals that the jury instruction did not relieve the State of the burden of persuasion on an element of the offense of second degree murder.
The majority’s position is that to sustain Ryan’s conviction, the State was obligated to prove, beyond a reasonable doubt, Ryan intentionally and with malice, but without premeditation, killed Thimm. The jury’s guilty verdict necessarily found the following: (1) Beyond a reasonable doubt, Ryan acted intentionally in causing Thimm’s death; (2) beyond a reasonable doubt, Ryan did not premeditate his intentional act which caused Thimm’s death; and (3) Ryan did not prove by a preponderance of the evidence that he was insane at the time he killed Thimm and was, therefore, excused. Thus, the only remaining element that a majority of this court would require the State to prove is that Ryan acted maliciously, that is, without just cause or excuse in killing Thimm.
At trial, Ryan never raised the issue of justification or excuse as a defense to his participation in the brutal killing of Thimm. Instead, Ryan chose to defend by claiming he was not guilty by reason of insanity. Ryan presented evidence at trial, in the context of an insanity defense, that he was under the mind control of his father and the religious cult at the Rulo farm and, thus, “ ‘was not acting on his own free will.’ ” State v. Ryan, 226 Neb. 59, 72, 409 N.W.2d 579, 588 (1987). The jury was properly instructed on the insanity defense. This defense is wholly inconsistent with the justification or excuse defenses set forth in §§ 28-1406 through 28-1416. It was Ryan’s burden to prove his insanity at the time of the murder by a preponderance of the evidence. See Neb. Rev. Stat. § 29-2203 (Reissue 1989). The jury did not accept Ryan’s claim of insanity at the time of his trial.
In Nebraska, for a defendant to claim insanity as a defense, he or she would necessarily assert either that he or she. does not have the capacity to understand the nature of the act alleged to *254be criminal or that he or she does not have the ability to distinguish between right and wrong with respect to such act. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). Ryan made these very claims at trial. It is logically impossible for a defendant to claim on one hand that he. did not understand the nature of his act and, at the same time, claim he understood his act to be justified under the circumstances. Claiming an act is justified necessarily means one understands the nature of the act performed. In addition, if one is unable to distinguish whether an act is right or wrong, then one cannot claim his act was, in fact, right and thus justified or excused by law.
Justification was never at issue in Ryan’s case. As is true with every insanity plea, Ryan’s reliance on the insanity defense necessarily admitted the fact of the killing. The insanity defense merely acts to completely absolve a defendant of criminal culpability if he did not appreciate the wrongfulness of his conduct or that he was unable to distinguish between right or wrong. Peter Arenella, Reflections on Current Proposals to Abolish or Reform the Insanity Defense, 8 Am. J.L. & Med. 271 (1982).
Therefore, even if the jury instruction required-the jury to presume the lack of justification, this instruction did not relieve the State of its burden of proving every element of the crime. Justification, as defined by statute, was not an issue in this case. For that reason alone, the error, if any, is harmless beyond a reasonable doubt.
Further, in Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), the Supreme Court held a harmless error analysis was applicable to an “erroneous malice instruction” in a Tennessee murder case. Significantly, as in the instant case, the accused in Rose defended on the ground that he was either insane or incapable of forming the requisite intent to kill the victims. The defendant had an opportunity to present evidence and argue in support of his innocence, he was tried by an impartial jury and supervised by an impartial judge, and, aside from the malice instruction, the jury was clearly instructed that it had to find the defendant guilty beyond a reasonable doubt as to every element of the crimes charged.
In this context, the Court found that the erroneous malice *255instruction did not compare with the kinds of errors that automatically require reversal of an otherwise valid conviction. The error in the instruction of impermissibly shifting the burden of proof on malice was not “ ‘so basic to a fair trial’ ” that it could never be harmless. 478 U.S. at 580. The Court concluded, in finding harmless error, that “[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Id.
Moreover, in Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), a unanimous Supreme Court reaffirmed and clarified the type of jury instruction errors that are amenable to a harmless error analysis under the U.S. Constitution. The Court divided the class of constitutional violations that may occur during the course of a criminal proceeding into two categories:
one consisting of “trial error[s],” which “may ... be quantitatively assessed in the context of other evidence presented,” [Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)], and are amenable to harmless-error analysis; the other consisting of “structural defects,” which “affec[t] the framework within which the trial proceeds,” [499 U.S. at 310], and require automatic reversal. There is a “strong presumption” that any error will fall into the first of these categories.
Sullivan, 508 U.S. at 282 (Rehnquist, C.J., concurring) (citing Rose v. Clark, supra).
The Supreme Court clearly pointed out that a jury instruction error of erecting a presumption regarding an element of an offense falls into the first category, which is amenable to a harmless error analysis, and is quite different than an erroneous reasonable doubt instruction, which requires an automatic reversal. Sullivan v. Louisiana, supra. The Court explained:
A mandatory presumption — for example . . . violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense. [Citations omitted.] But “[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Rose v. Clark, [478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 *256(1986)]. And when the latter facts “are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.” Carella v. California, 491 U.S. 263, 271, (1989) (Scalia, L, concurring in judgment).... A reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt.
508 U.S. at 280-81.
The instant case, like Rose v. Clark, supra, clearly falls into the first category of cases and is amenable to a harmless error analysis. The majority distinguished Rose from the instant case by stating that the instruction in this case did not allow the defendant to rebut the presumption of malice. However, the question is not whether the presumption of malice given in the jury instruction was rebuttable, but whether the presumption relieved the State of its duty to prove Ryan’s guilt beyond a reasonable doubt of every element of the crime charged. Clearly, the presumption of malice or, better stated, the presumption of lack of just cause in this case did not relieve the State of any burden of proof. Instead, Ryan removed the issue of justification, or whether he acted with malice, by tendering an insanity defense.
In addition, there were absolutely no facts in this record setting forth a possible justification defense for the torture killing of Thimm. A full rendition of the sordid facts of this case is set forth in this court’s opinion rendered as a result of Ryan’s direct appeal. See State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987). However, a minimal review of the facts of this case is necessary to an understanding of the complete and utter absence of any justification defense in this record. Thimm died on or about April 30, 1985, as the result of being physically abused for several days before his death. Thimm had been given the status of slave by Ryan’s father after the first of the year in 1984. About 1 month prior to his death, Thimm was chained up at night and forced to sleep on the porch of a trailer house. Thimm was chained at night by Ryan, or others, and he did not *257resist this treatment in any manner.
Two days before his death, Thimm was moved to a hog confinement building and was instructed by Ryan’s father to take a goat with him and have sex with it. Thimm was given a jar for water, a hot plate, and a sleeping bag. The day before Thimm died, Ryan’s father inserted a greased shovel handle into Thimm’s rectum several times, then Ryan performed the same act. Thimm offered no resistance. Later that same day, Ryan participated in the whipping of Thimm. At this time, Thimm was spread-eagled against an auger.
The next day Ryan participated in another whipping of Thimm because the redness from the first day was gone. During this time, Thimm was undressed except for the socks he wore. Ryan, at the direction of his father, then took his turn at shooting off the fingertips on one of Thimm’s hands. The hand was propped up on a block of wood, palm up. The victim was then whipped again by Ryan. Shortly thereafter, Ryan participated in skinning one of Thimm’s legs with a razor blade and pliers. Then Ryan and another codefendant each broke one of the victim’s legs.
One of the trial witnesses, John David Andreas, testified that Ryan “ ‘thought it was kind of — it was kind of neat that he had helped kill somebody.’ ” Ryan, 226 Neb. at 65, 409 N.W.2d at 584. Andreas also testified that Ryan had later bragged about the killing and did not show remorse or sorrow.
The guilty verdict for Ryan clearly cannot be attributed to a purported error of instmcting a jury that it must presume the lack of just cause if it found Ryan intentionally, but without premeditation, killed Thimm. There was no evidence whatsoever concerning just cause offered by Ryan or any of the other defendants at trial. The only defense tendered by Ryan at trial was insanity. Ryan claimed he did not appreciate the wrongfulness of his conduct because of his age and the influence that his father exerted over him. The jury was properly instructed on the insanity defense, and it clearly rejected the defense that Ryan tendered at trial.
Therefore, even if there was error in the instructions in this case, “the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Emphasis in original.) See *258Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993).
IE. CONCLUSION
For the above reasons, I would find Nebraska’s second degree murder statute to be clear, unambiguous, and valid in all respects. In my opinion, the jury was properly instructed, and Ryan’s motion for postconviction relief was appropriately denied by the trial court.
Even if the jury was erroneously instructed to presume malice from certain predicate facts in this case, such an instruction was harmless beyond a reasonable doubt based on a proper application of the standards set forth by the U.S. Supreme Court. Assuming that the jury should have received an instruction on malice in the instant case — what possible justification or excuse existed in this record? Rather than theorizing about absurd consequences in the abstract, this court, as an institution, need concern itself with avoiding absurd consequences in second degree murder cases that we are called upon to decide. It is difficult to conceive a more absurd consequence than the granting of a new trial for Ryan based on the facts of this case and the instructions that were given to the jury.
Wright and Connolly, JJ., join in this dissent.