At common law every criminal homicide was considered either murder or manslaughter. There were no degrees of murder. Murder was the unlawful killing of another with "malice aforethought" and this malice could either be express or implied. Manslaughter, on the other hand, was the unlawful killing of another without malice.

In Nebraska there are two statutory degrees of murder. The first degree murder statute provides that every person who "purposely and of deliberate and premeditated malice or in the perpetration of or attempt to perpetrate any rape, arson robbery or burglary ... kill[s] another... shall be deemed guilty of murder in the first degree...." The second degree murder statute, on the other hand, provides that every person who "purposely and maliciously, but without deliberation and premeditation, kill[s] another ... shall be deemed guilty of murder in the second degree...."

All criminal homicide is considered one offense in Nebraska and the surrounding circumstances determine the degree of the offense, whether it be first degree murder, second degree murder, or manslaughter. In some states manslaughter is considered a distinct offense rather than a degree of the crime of murder, but the better view would seem to be that murder includes all degrees of felonious homicide.

A. Malice … 1. Express Malice … a. Interference with attempt to kill Where the Killing is Unexplained or Where Death is the Result of the Use of a Deadly Weapon … b. Intent to Inflict Serious Bodily Harm, But not to Kill … 2. Implied Malice … a. Resisting Lawful Arrest … b. Felony-Murder Doctrine … c. Negligent Homicide with Awareness of Great Peril Io Life and Safely of Others …

B. Premeditation and Deliberation …

Conclusion …