dissenting.
The majority criticizes the previous decision of this court for not following the teachings of State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996), i.e., that it is not within the province of the courts to read a meaning into a statute that is not there.
However, in State v. Koperski, 254 Neb. 624, 640, 578 N.W.2d 837, 847 (1998), this court, in a unanimous opinion, said:
*198The absence of words in a statute requiring a certain mental state does not warrant the assumption that the Legislature intended to impose strict liability. To the contrary, at least for an offense as serious as sexual assault, it should be presumed that the Legislature intended to follow the usual mens rea requirement unless excluded expressly or by necessary implication. See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.1(b) (1986).
The majority condemns a principle that it embraced 3 short months ago.
Killing with malice is the killing of a victim without legal justification. See State v. Drinkwalter, 242 Neb. 40, 493 N.W.2d 319 (1992). The intentional killing of a person may or may not constitute a crime. Indeed, the intentional killing by a police officer of a fleeing felon, the execution of a condemned person by a warden according to the direction of an appropriate court, and this court’s direction to execute a convicted murderer are examples of killings that are not criminal offenses. Logically, how are these acts to be distinguished from criminal responsibility for a death absent malice? Certainly not from the words of the statute, since the statute plainly embraces criminal and noncriminal acts.
In order to cure the infirmities of the second degree murder statute, the majority relies on Neb. Rev. Stat. § 28-102(1) (Reissue 1995), the purpose of which is “[t]o forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.” Thus, the majority is in fact saying that it is necessary that the State prove that an essential element of second degree murder is the unjustifiable and inexcusable infliction of harm to individual or public interests (i.e., malice).
Inexplicably, after embracing in effect the essence of malice as a requirement of the crime, the majority says that the burden of proving that the killing was justifiable and excusable falls on the defendant. However, if anything more than a mere scintilla of evidence is introduced by the defendant, the State must prove beyond a reasonable doubt the lack of justification. We are then faced with the proposition that malice continues to be an ele*199ment the State must prove when met with any evidence by the defendant that the killing was justifiable.
The majority in effect does not overrule our previous cases defining malice as an essential element of crimes; it simply shifts the burden of going forward to the defendant in a very constitutionally suspect manner. The interesting aspect of the majority opinion is that a charge of second degree murder could be submitted to a jury on simple proof of the killing of one person by another unless the defendant affirmatively offers proof of justification. Thus, in all the examples stated above, absent proof of justification, all could logically be charged with second degree murder and convicted.
Caporale, J., joins in this dissent.