dissenting.
I cannot agree with the majority’s resolution of the variance issue in this case.
The two statutes at issue, Neb. Rev. Stat. §§ 39-669.07 and 39-669.08 (Reissue 1984), relate to two separate and distinct offenses. See State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981). (Although this court in Stabler dealt with these statutes as they appeared in the reissue of 1978, prior to major legislative revisions in 1982, the premise that these statutes “create separate and distinct offenses” is equally applicable today.) Clearly, § 39-669.07 relates to the crime and penalties for driving under the influence of alcoholic liquor or drugs. On the other hand, § 39-669.08, the implied consent statute, relates to the crime and penalties for refusal to submit either to a preliminary breath test or a chemical test of one’s blood, breath, or urine.
The fact that these statutes both provide for conviction of a Class IV felony upon a finding that one has operated a motor vehicle while under permanent revocation does not alter this court’s conclusion in Stabler that each statute proscribes very specific and different behaviors.
This court has often held that in order to charge a statutory offense, the information or complaint must contain a distinct allegation of each essential element of the crime as defined by the law creating it, either in the language of the statute or its equivalent. State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986); State v. Banse, 184 Neb. 534, 169 N.W.2d 294 (1969).
*418The law creating the statutory offense with which Blankenfeld was charged defines the essential elements as (1) “operating a motor vehicle” (2) “while his . . . license has been permanently revoked pursuant to this section,” i.e., subdivision (c) of subsection (4) of § 39-669.08. On its face the information filed against Blankenfeld was sufficient to charge a statutory offense. The error in this case arose at trial, where the State introduced evidence of defendant’s prior third-offense DWI conviction in an attempt to prove, in the words of the information, that he was “a person whose Nebraska driver’s license has been permanently revoked pursuant to subdivision (c) of subsection 4 of Neb. Rev. Stat. Section Number 39-669.08 . . . .” That evidence did not prove the second essential element of the offense charged; it proved only that defendant’s license had been permanently revoked pursuant to § 39-669.07(3).
It is a fundamental principle of statutory construction that a penal statute is to be strictly construed. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986); State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987). It is the province of the Legislature rather than the courts to define criminal behavior. State v. Douglas, supra; United States v. Speidel, 562 F.2d 1129 (8th Cir. 1977).
It is not for this court to supply missing words or sentences to make clear that which is indefinite in a statute. See State v. Steele, supra. Nor is it the province of this court to turn a blind eye to explicit statutory language which defines a crime in order to shroud an obvious error made by the State when it charged Blankenfeld in this case. Courts have no jurisdiction to change the language of a statute. State v. Levell, 181 Neb. 401, 149 N.W.2d 46 (1967).
It is a settled rule that the evidence in a criminal case must correspond with the allegations of the indictment (or information) which are essential and material to charge the offense. 41 Am. Jur. 2d Indictments and Informations § 261 (1968).
It is also true that this court has held that a variance between the allegations in the information and the evidence offered in proof thereof is not fatal unless it is material to the merits of the *419case or such is prejudicial to the defendant. State v. Nelson, 182 Neb. 31, 152 N.W.2d 10 (1967).
The above-stated rule does not, however, save the conviction in this case. First, this is not a case of mere variance, but is a failure to prove an averment, proof of which is essential to a valid conviction. The People v. Lewis, 140 Ill. App. 493 (1908), cited in State v. Temple, 262 S.W.2d 304 (Mo. App. 1953). Second, failure to prove an essential element of the crime charged is certainly “material to the merits” of a case.
Finally, we must consider the principles set forth by the U.S. Supreme Court in Ex Parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887), and Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). Bain stands for the rule that “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” Stirone v. United States, supra at 217. In Stirone the Court stated that “[deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U. S. 78.” 361 U.S. at 217-18.
Bain and Stirone are cases addressing grand jury indictments, not informations. The fifth amendment right to be tried upon indictment by a grand jury has never been extended to the states. However, the underlying basis for the principles announced in Bain and Stirone seems equally applicable if considered in light of the following observation regarding the variance rule:
The Supreme Court has recognized . . . that if there is no amendment of the indictment, but only a variance between the facts alleged in the indictment and the evidence offered at trial, the problem is not one of usurping the constitutionally guaranteed role of the grand jury [emphasis supplied], but one of promoting the fairness of the trial and ensuring the defendant notice and an opportunity to be heard. [Citations omitted.] The variance rule, to the extent that it is constitutionally required, is more of a due process rule than is the flat fifth amendment prohibition against being tried on an indictment which a grand jury never returned.
*420United States v. Crocker, 568 F.2d 1049, 1059 (3d Cir. 1977).
With or without an extended discussion of the fine points of the law of variance, I believe a much more rudimentary principle is involved in this case. It is elementary that a person cannot be charged with one specific crime and then convicted on evidence of another separate and distinct crime. “Under an indictment [or information] charging a particular offense, a conviction cannot be had on evidence of another and distinct offense, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishment.” 42 C. J.S. Indictments and Informations § 261 at 1285-86 (1944). See, also, State v. Voracek, 353 N.W.2d 219 (Minn. App. 1984); State v. Richardson, 343 S.W.2d 51 (Mo. 1961); State v. Temple, supra.
Clearly, the crime charged in this case was not the crime that the defendant was convicted of after the bench trial in district court. The trial judge, as the trier of fact, specifically found that “Mr. Blankenfeld was operating a motor vehicle [and] at the time he was operating that vehicle... his driver’s license had been permanently revoked pursuant to Section 39-669.08 and the court makes these findings beyond a reasonable doubt.”
Generally, where a judge serves as the trier of fact in a criminal case, the factual findings will not be disturbed on appeal unless clearly wrong. State v. Laue, 225 Neb. 57, 402 N.W.2d 313 (1987). In this case, the trial judge’s finding of fact that Blankenfeld’s license had been permanently revoked pursuant to § 39-669.08 is clearly wrong.
Shanahan, J., joins in this dissent.