Malice is almost as old as the common law of homicide. But, its meaning and function has changed over time with the law itself. Part II of this article presents a brief history of malice and murder. Malice began as a general criminal intent, an evil mind or bad attitude. It became tied to the idea of prior planning of a killing and today is almost everywhere understood as (1) an intent to kill, (2) an intent to do grievous bodily harm, or (3) an intent to act with a “depraved heart” conscious disregard of an extreme risk to human life. Part III traces the statutory history of murder, malice, and manslaughter in Nebraska and then discusses the case law dealing with malice. By the time Nebraska became a state, the statutes had dropped any definition of malice. Yet, from the first appearance of malice in the Nebraska Supreme Court opinions until the present, malice consistently has been defined as the intentional doing of a wrongful act without just cause or excuse. This definition comes from the early days of the common law. It is the ancient idea of a general criminal intent, which distinguishes the criminal from the merely wrongful. Until very recently, the function of malice in Nebraska homicide law was minimal at best. But today its hoary visage is matched by the electric Kool-aid elixir the concept carries. Part IV considers four recent homicide cases and the puzzles they create for Nebraska law. What is the mens rea for second degree murder? May an intentional homicide be manslaughter? Must the State prove beyond a reasonable doubt that the accused did not act from an adequate provocation? May excuses or justifications, although not recognized and mandated by law, negate malice?
John Rockwell Snowden,
Second Degree Murder, Malice, and Manslaughter in Nebraska: New Juice for an Old Cup,
76 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol76/iss3/2