Nebraska Revised Statute 28-303
Chapter 28 Section 303
Murder in the first degree; penalty.
A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.
- Laws 1977, LB 38, § 18;
- Laws 2002, Third Spec. Sess., LB 1, § 3;
- Laws 2015, LB268, § 9;
- Referendum 2016, No. 426.
- Note: The changes made to section 28-303 by Laws 2015, LB 268, section 9, have been omitted because of the vote on the referendum at the November 2016 general election. This version of section 28-303 is found in the 2008 Reissue of Volume 2 of the Revised Statutes of Nebraska.
1. Felony murder
3. Lesser-included offense
5. Requisite mental state
1. Felony murder
The crime of first degree murder constitutes one offense even though there may be alternate theories by which criminal liability for first degree murder may be charged and prosecuted in Nebraska. State v. White, 254 Neb. 566, 577 N.W.2d 741 (1998).
One may commit first degree murder either by committing premeditated murder or by killing another person while in the commission of certain felonies. A defendant need not be charged and convicted of an underlying felony in order to be convicted of first degree murder pursuant to subsection (2) of this section. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).
A specific intent to kill is not required for felony murder, but only the intent to do a felonious act which causes a victim's death. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).
The felony murder statute does not violate the Eighth Amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
A victim's fatal heart attack, proximately caused by a defendant's felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder. State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986).
Proof of intent to kill is not an element of crime of felony murder. Statement in State v. Kauffman, 183 Neb. 817, 164 N.W.2d 469 (1969), that "purpose to kill is conclusively presumed from the criminal intention required for robbery" is disapproved. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).
A jury needs to be unanimous only in its finding that the defendant committed first degree murder and not as to the theory which brought it to that verdict. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
In a first degree murder case, the jury need only be unanimous as to its verdict that defendant committed first degree murder, and not as to the theory which brought them to that verdict. State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).
3. Lesser-included offense
Second degree murder and manslaughter are not lesser-included offenses of the felonies set out in this section, so no instruction to the jury on them is ordinarily required. State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982).
Evidence that a defendant deliberately sought out the murder victim with the purpose of killing him was a sufficient basis for a reasonable trier of fact to find beyond a reasonable doubt that the defendant killed the victim purposely and with deliberate and premeditated malice. State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
Deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
The term "premeditated" means to have formed a design to commit an act before it is done. One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
Evidence of premeditated malice is sufficient to uphold conviction for first degree murder when it demonstrates that the defendant told others that he wanted to "go finish (the victim) off", that the defendant stopped a knife attack on the victim to evade detection by a passing car, and that the defendant resumed the knife attack once the car had passed and the defendant heard the victim making noises indicating that the victim was still alive. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
In order to be guilty of first degree murder, one must have killed purposely and with deliberate and premeditated malice. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).
5. Requisite mental state
Nothing in this section or in the Nebraska Supreme Court's interpretation of this section requires that a defendant must rationally consider the probable consequences of his or her actions or rationally determine to kill the victim without legal justification. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
In order to prove the requisite mental state, the state is required to show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause and which is defined as any willful or corrupt intention of the mind. State v. Krimmel, 216 Neb. 825, 346 N.W.2d 396 (1984).
To prove the requisite mental state for first degree murder, the state must show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause or excuse and which is defined as any willful or corrupt intention of the mind. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).
The absence of a sudden quarrel is not an element of the crime of murder in the first degree. State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
An alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such intent. In the context of felony murder, the required intent is the intent to commit the underlying felony rather than the intent to kill. State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
A defendant who aids and abets a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
The statutory elements of attempted first degree murder are a substantial step in a course of conduct intended to culminate in the commission of a purposeful, malicious, premeditated killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).