dissenting.
I respectfully dissent, for I would reverse the judgment of the district court.
I understand that stare decisis ought not be, and is not, so inflexible a doctrine as to prohibit the correction of judicial error. However, that common-law principle, see Kresha v. Kresha, 216 Neb. 377, 344 N.W.2d 906 (1984), yields to the specific rule of statutory construction applicable to the circumstances presented; namely, that as a general matter, where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of its intent. Mayfield v. Allied Mut. Ins. Co., 231 Neb. 308, 436 N.W.2d 164 (1989); Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989); Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983).
After the enactment of the language presently found in Neb. Rev. Stat. § 28-304 (Reissue 1995) became operative on January 1, 1979, 1977 Neb. Laws, L.B. 38, this court unanimously wrote in State v. Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979), that malice was an element of second degree murder. Specifically noting the absence of the word “malice” in § 28-304, this court adhered to the Clermont interpretation in State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), and in a number of other cases. State v. Franklin, 241 Neb. 579, 489 *200N.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). Thus, had the Legislature concluded that notwithstanding the historical understanding of the crime of second degree murder, this court had misread the legislative intent, the Legislature had ample opportunity long before this court again unanimously applied its earlier interpretation in State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), and long before any constitutional concerns were expressed in State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996), and State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), to have amended § 28-304 so as to have clearly declared that it intended to remove malice as a statutory element of second degree murder, much as it did ab initio with respect to the crime of manslaughter. See 1977 Neb. Laws, L.B. 38, codified at Neb. Rev. Stat. § 28-305 (Reissue 1995) (one “commits manslaughter if he kills another without malice”). Instead, the Legislature elected to remain silent.
Lamentably, this is not the first time I have had occasion to suggest it appears that this tribunal applies the legislative acquiescence rule when a majority of its members is comfortable with the result the rule produces and ignores the rule when the situation is otherwise. See, Nippert v. Shinn Farm Constr. Co., 223 Neb. 236, 388 N.W.2d 820 (1986) (Caporale, J., dissenting, joined by Boslaugh and Hastings, JJ.); Friedeman v. State, 215 Neb. 413, 339 N.W.2d 67 (1983) (Caporale, J., dissenting, joined by Hastings, J.). As noted in those dissents, if the law changes based merely upon the makeup of this court at any particular time, the law loses predictability and becomes arbitrary and capricious.