State v. Ryan

Connolly, J.,

dissenting.

Once again, I dissent on the malice issue.

In reviewing the criminal code which became operative on July 1, 1978, the Legislature deliberately eliminated malice as an element of second degree murder. “In construing a penal statute, a court cannot supply language which is absent from the statutory definition for a criminal offense.” State v. Schaaf, 234 Neb. 144, 157, 449 N.W.2d 762, 770 (1989). Also, it will be presumed that the Legislature, in adopting an amendment, intended to make some change in the existing law and that the courts will endeavor to give some effect thereto. No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994). Nonetheless, the majority has once again, by judicial fiat, determined that malice is an essential element of second degree murder.

*259The majority reasons that malice must be inserted as a material element of second degree murder to avoid “the absurd consequence of an overbroad murder statute making certain legal acts illegal.” The majority opinion suggests that law enforcement officers who kill in the line of duty, prosecutors who successfully persuade a court to sentence a convicted murderer to death, and the executioner who carries out any such sentence could all be charged with second degree murder for performing their respective duties.

This reasoning is nonsensical. The general purpose of our criminal code is to forbid and prevent only conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. See Neb. Rev. Stat. § 28-102(1) (Reissue 1989). If one follows the majority’s opinion to its logical conclusion, then a number of criminal statutes that proscribe intentional or knowing conduct, but do not include the word “malice,” could be construed similarly.

For example, our first degree false imprisonment statute, Neb. Rev. Stat. § 28-314 (Reissue 1989), would require the inclusion of the word “malice” because otherwise a police officer performing his or her duty by handcuffing a criminal suspect could be charged with false imprisonment. Likewise, our assault statutes, Neb. Rev. Stat. §§ 28-308 to 28-310 (Reissue 1989), would require malice because a police officer who causes bodily injury to a criminal suspect that physically resists arrest could be charged with assault. As one can see, the majority opinion poses the potential danger of leading to similar absurd results in other areas of our penal law.

The majority’s tortuous reasoning has created a Jabberwocky decision in which rules are subject to change without notice to the parties or the trial court. This should not be.

Wright and Gerrard, JJ., join in this dissent.