State v. Smith

State of NebraSka , appellee , v. roNald G. Smith , appellaNt.
806 N.W.2d 383
Filed November 18, 2011. 	No. S-09-1107.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
2. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and suf-
ficient provocation which causes a reasonable person to lose normal self-control.
4. ____: ____. A sudden quarrel does not necessarily mean an exchange of angry
words or an altercation contemporaneous with an unlawful killing and does not
require a physical struggle or other combative corporal contact between the
defendant and the victim.
5. Homicide: Intent. It is not the provocation alone that reduces the grade of the
crime, but, rather, the sudden happening or occurrence of the provocation so as
to render the mind incapable of reflection and obscure the reason so that the ele-
ments necessary to constitute murder are absent.
6. ____: ____. In determining whether a killing constitutes murder or sudden quar-
rel manslaughter, the question is whether there existed reasonable and adequate
provocation to excite one’s passion and obscure and disturb one’s power of
reasoning to the extent that one acted rashly and from passion, without due delib-
eration and reflection, rather than from judgment. The test is an objective one.
Qualities peculiar to the defendant which render him or her particularly excitable,
such as intoxication, are not considered.
7. Criminal Law: Statutes. It is a fundamental principle of statutory construction
that penal statutes be strictly construed.
8. Statutes: Legislature: Intent. The principal objective of construing a statute is
to determine and give effect to the legislative intent of the enactment.
9. ____: ____: ____. In construing a statute, a court must determine and give effect
to the purpose and intent of the Legislature as ascertained from the entire lan-
guage of the statute considered in its plain, ordinary, and popular sense.
10. Homicide: Intent: Case Overruled. An intentional killing committed without
malice upon a sudden quarrel constitutes the offense of manslaughter. To the
extent that State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), holds otherwise,
it is overruled.
11. Jury Instructions: Proof: New Trial: Appeal and Error. In order to find that
a trial court’s error in giving an incorrect jury instruction warrants a new trial,
it must be shown that a substantial right of the defendant was adversely affected
and that the defendant was prejudiced thereby.
Appeal from the District Court for Otoe County: raNdall l.
rehmeier, Judge. Affirmed.
720 	282 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

James 	r. 	Mowbray 	and 	Jerry 	L. 	Soucie, 	of 	Nebraska
Commission on public Advocacy, for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heavicaN, 	c.J., 	WriGht, 	coNNolly, 	G errard, 	StephaN,
mccormack, and miller-lermaN, JJ.
StephaN, J.
On February 13, 2009, ronald G. Smith was charged by
information with one count of murder in the second degree;
one count of first degree forgery, which was later amended to
second degree forgery; and one count of theft by taking. All
three charges related to the death of Terri Harris. After a jury
trial, Smith was convicted and sentenced on all three counts.
He then filed this timely appeal, assigning error only with
respect to his conviction for second degree murder, for which
he was sentenced to 40 to 70 years’ imprisonment.
FACTS
Smith and Harris lived together in a single family residence
in Syracuse, Nebraska. In November 2008, both were laid off
from their jobs at a Syracuse manufacturing company. both
received severance checks in December as a result of the lay-
offs; Harris’ check was for $3,067.51, and Smith’s check was
for $3,218.97.
Smith cashed his check at a Syracuse bank on December 19,
2008. Smith cashed Harris’ check at the drive-through window
of the same bank at approximately 10 a.m. on December 23.
He was driving Harris’ vehicle at the time and told the teller
that he needed the money because Harris had broken her leg
and was in the hospital. Smith left Syracuse after cashing
the check.
From December 23 to 25, 2008, both Harris’ adult son and
Harris’ sister tried unsuccessfully to contact her on her cellu-
lar telephone. Finally, on December 25, Harris’ sister called
Smith on his cellular telephone to ask if he knew where Harris
was. Smith told the sister that Harris was having trouble with
her cellular telephone, but that he had seen her that morning
STATe v. SMITH 	721
Cite as 282 Neb. 720

and that she was fine. Smith also told the sister that he was
in St. Louis, Missouri, and that he would be back home the
next day.
Harris’ sister remained concerned after speaking with Smith,
so she called Harris’ son and asked him to go to the house and
check on Harris. The son went to the house at approximately
5:30 p.m. on December 25, 2008. He discovered Harris’ body
on the floor of the bedroom. The body was face up, lodged
between the bed and the wall, and partially covered with
a blanket.
A pillow covered in a dark-blue pillowcase was found on
the floor near Harris’ head, and strands of her hair and blood
were found on the pillowcase and pillow. Investigators did not
observe any defensive wounds on Harris’ hands or arms and saw
no signs that a struggle had occurred in the room. Investigators
noticed that the mattress on the bed was shifted about 6 inches
to one side, so that the mattress and boxspring did not meet on
the side of the bed where Harris’ body was found.
After finding his mother’s body, Harris’ son made several
calls to Smith’s cellular telephone and left angry messages,
informing Smith that the police were looking for him. Smith
did not return the calls. On December 27, 2008, a tearful
Smith called the 911 emergency dispatch service in Illinois
and stated that he had been on a drug and alcohol binge for 2
weeks and thought he had killed someone in Nebraska. When
Smith was subsequently arrested by Illinois law enforcement
authorities, he was extremely intoxicated; hospital records
show he had a blood alcohol content of .435 on the evening of
December 27.
Smith was interviewed by Nebraska law enforcement author-
ities on December 28, 2008, at 2:35 p.m. He was informed of
and waived his Miranda rights prior to this interview. The
interview was recorded and was played to the jury at trial.
During the interview, Smith stated that after losing his job,
he began drinking and using methamphetamine on a regular
basis. Smith said that he arrived at the home which he and
Harris shared at approximately 1 a.m. on December 22, 2008,
after a night of drinking and drug use. Harris was asleep in the
bedroom when he arrived, and Smith slept on the couch. When
722 	282 NebrASkA repOrTS

Smith awoke at approximately 5:30 or 6 a.m., he and Harris
began arguing in the bedroom. They argued about Smith’s
drinking and drug use, their recent layoffs, and money. At some
point during the argument, Smith pushed Harris from her bed.
She hit the floor hard and lay there motionless with her face
up. Smith took a pillow from the bed and held it over Harris’
face for 1 to 2 minutes. She did not resist. Smith covered
Harris with a blanket, kissed her, and left the house in Harris’
vehicle. He admitted that he took Harris’ severance check,
cashed it, and then left the state. Harris’ cellular telephone and
$15.65 in cash was found in Smith’s motel room at the time of
his arrest in Illinois. During his interrogation, Smith wrote a
note to Harris’ family in which he stated: “There is nothing I
can say to justify my actions. . . . I just hope your family can
move on. Sorry is not enough I know that but its [sic] all I can
do right now.”
Two medical experts testified as to the cause of Harris’ death.
The pathologist who testified for the State had performed the
autopsy on Harris and had authored a report stating that Harris’
cause of death was “undetermined,” but that nothing in the
autopsy was inconsistent with a death caused by smothering.
A forensic pathologist testified for Smith. He reviewed photo-
graphs of the autopsy, the autopsy report, photographs of the
crime scene, and Harris’ medical records. He testified that
Harris died from natural causes, specifically, heart disease and
sleep apnea. He opined that smothering could not have been
the cause of Harris’ death, because there was no forensic evi-
dence of a struggle prior to her death.
During the jury instruction conference, Smith objected to
the trial court’s proposed instruction on the elements of sec-
ond degree murder, and submitted his own. The district court
refused to give Smith’s requested instruction and instead gave
a pattern second degree murder instruction to the jury. The
jury was instructed that to convict Smith of murder in the
second degree, the State had to prove beyond a reasonable
doubt that Smith killed Harris intentionally but without pre-
meditation. The jury was then instructed that if it found the
State had proved each element beyond a reasonable doubt, it
was its “duty to find [Smith] guilty of the crime of murder in
STATe v. SMITH 	723
Cite as 282 Neb. 720

the second degree.” The jury was instructed that it could pro-
ceed to consider whether Smith committed manslaughter if it
found that the State had failed to prove any one or more of the
material elements of second degree murder beyond a reason-
able doubt.
Smith was convicted of second degree murder, second
degree forgery, and theft by taking. After he was sentenced for
each offense, he filed this timely appeal, challenging only his
conviction for second degree murder. We granted his petition
to bypass.
ASSIGNMeNTS OF errOr
Smith assigns that the district court (1) erred in failing to
give his requested jury instruction on second degree murder
and (2) violated his constitutional right to due process by
failing to instruct the jury that the distinction between sec-
ond degree murder and manslaughter is based on whether the
specific intent to kill was or was not the result of a “‘sud-
den quarrel.’”
STANDArD OF reVIeW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court.1
[2] The determination of whether the procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law.2
ANALYSIS
Smith contends that the jury was not properly instructed on
the distinction between second degree murder and manslaugh-
ter. because all crimes are statutory in Nebraska, and no act is
criminal unless the Legislature has in express terms declared it
1 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Schmidt, 276
Neb. 723, 757 N.W.2d 291 (2008).
2 State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009); State v. Lotter,
278 Neb. 466, 771 N.W.2d 551 (2009).
724 	282 NebrASkA repOrTS

to be so,3 we begin with the statutory elements of the offenses.
“A person commits murder in the second degree if he causes
the death of a person intentionally, but without premedita-
tion.”4 Second degree murder is a Class 1b felony, punishable
by imprisonment for a minimum term of 20 years and a maxi-
mum term of life.5 The statutory definition of manslaughter
is expressed in an “inclusive disjunction,”6 namely: “A per-
son commits manslaughter if he kills another without malice,
either upon a sudden quarrel, or causes the death of another
unintentionally while in the commission of an unlawful act.”7
Manslaughter is a Class III felony punishable by a maximum
term of imprisonment of 20 years, a $25,000 fine, or both.8 The
statutes defining the elements of these offenses have remained
unchanged since 1977.9
In this case, we are concerned with the first type of man-
slaughter defined by § 28-305(1), which we shall refer to as
“sudden quarrel manslaughter” or “voluntary manslaughter.”
Nature of SuddeN Q uarrel
[3-6] A sudden quarrel is a legally recognized and sufficient
provocation which causes a reasonable person to lose normal
self-control.10 It does not necessarily mean an exchange of
angry words or an altercation contemporaneous with an unlaw-
ful killing and does not require a physical struggle or other
combative corporal contact between the defendant and the
3 See, State v. Claussen, 276 Neb. 630, 756 N.W.2d 163 (2008); State v.
Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
4 Neb. rev. Stat. § 28-304(1) (reissue 2008).
5 Neb. rev. Stat. § 28-105(1) (reissue 2008) and § 28-304(2).
6 State v. Pettit, 233 Neb. 436, 445, 445 N.W.2d 890, 896 (1989), overruled
on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
7 Neb. rev. Stat. § 28-305(1) (reissue 2008).
8 §§ 28-105(1) and 28-305(2).
9 See 1977 Neb. Laws, L.b. 38, §§ 19 and 20.
10 State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Lyle, 245
Neb. 354, 513 N.W.2d 293 (1994).
STATe v. SMITH 	725
Cite as 282 Neb. 720

victim.11 It is not the provocation alone that reduces the grade
of the crime, but, rather, the sudden happening or occurrence
of the provocation so as to render the mind incapable of reflec-
tion and obscure the reason so that the elements necessary to
constitute murder are absent.12 The question is whether there
existed reasonable and adequate provocation to excite one’s
passion and obscure and disturb one’s power of reasoning to
the extent that one acted rashly and from passion, without due
deliberation and reflection, rather than from judgment.13 The
test is an objective one.14 Qualities peculiar to the defendant
which render him or her particularly excitable, such as intoxi-
cation, are not considered.15
In State v. Vosler,16 we reversed a conviction for second
degree murder because the jury had not been instructed on
sudden quarrel manslaughter. In that case, the defendant’s wife
was hospitalized after a suicide attempt stemming from her
despondency over an extramarital affair she was having with
her husband’s close friend. The defendant came to the hospital
with a weapon, intending to kill himself in his wife’s presence.
When he arrived in the hospital room and observed his friend
hugging and kissing his wife, he shot and killed his friend.
On these facts, we held the jury should have been instructed
on sudden quarrel, because the jury would have been justi-
fied in finding that the defendant “was provoked into killing
the victim by the display of affection between his wife and
the victim.”17
but in State v. Lyle,18 we held that a trial judge did not err
in convicting the defendant of first degree murder, and not
11 Lyle, supra note 10; State v. Vosler, 216 Neb. 461, 345 N.W.2d 806
(1984).
12 See Lyle, supra note 10.
13 See, id.; State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).
14 See id.
15 See Cave, supra note 13.
16 Vosler, supra note 11.
17 Id. at 465, 345 N.W.2d at 809.
18 Lyle, supra note 10.
726 	282 NebrASkA repOrTS

sudden quarrel manslaughter. After fighting with his brother,
the defendant left and then returned about 20 minutes later
and fatally shot his brother. We noted that while the defend-
ant’s anger may have been the motivating factor behind the
killing,
the fact that [the defendant] was angry is not the stan-
dard for reducing a murder to manslaughter. rather, it
is whether [the defendant’s] anger was prompted by a
provocation which would so provoke a reasonable per-
son to obscure and disturb his power of reasoning to the
extent that he acted rashly and from passion, without due
deliberation and reflection.19
We further noted: “The concept of manslaughter ‘“is a conces-
sion to the infirmity of human nature, not an excuse for undue
or abnormal irascibility . . . .”’”20
Jury iNStructioNS
Smith contends that the step instruction given by the district
court deprived him of due process because it did not allow
the jury to consider whether his specific intent to kill was
the result of a sudden quarrel. Smith acknowledges that this
argument runs contrary to current Nebraska law as set forth
in State v. Jones,21 in which this court reversed State v. Pettit22
and held that “there is no requirement of an intention to kill
in committing manslaughter. The distinction between second
degree murder and manslaughter upon a sudden quarrel is the
presence or absence of an intention to kill.”23 Smith effectively
argues that Jones should be overruled, because it is based upon
the same reasoning as prior cases holding that malice was an
element of second degree murder, which we overruled in State
v. Burlison.24
19 Id. at 364, 513 N.W.2d at 302.
20 Id., quoting Com. v. Pirela, 510 pa. 43, 507 A.2d 23 (1986).
21 Jones, supra note 6.
22 Pettit, supra note 6.
23 Jones, supra note 6, 245 Neb. at 830, 515 N.W.2d at 659.
24 State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
STATe v. SMITH 	727
Cite as 282 Neb. 720

The question of whether an intentional killing may con-
stitute sudden quarrel manslaughter has vexed this court for
many years. At its root is the statutory language defining man-
slaughter as a killing which is committed “without malice.”25
In State v. Batiste,26 this court considered an argument that
the evidence was insufficient to support a first degree murder
conviction and established, at most, only sudden quarrel man-
slaughter. Focusing on the phrase “without malice,” this court
reasoned:
“Malice,” in a legal sense, denotes that condition of
mind which is manifested by the intentional doing of a
wrongful act without just cause or excuse. . . . Thus, to
constitute manslaughter, the slayer must have no intention
of doing the wrongful act of killing another without just
cause or excuse.27
From this, the court reasoned that if a killing “is done inten-
tionally without legal cause or excuse, then there is malice,
and the degree of killing is greater than manslaughter because
malice is involved.”28
Several months after the Batiste decision, this court revisited
the meaning of the phrase “without malice” in Pettit.29 There,
the defendant was convicted of manslaughter in the death of
his wife, which occurred after an argument. The defendant
contended that he intended to kill himself, but accidentally shot
his wife. The State countered that because the fatal shooting
occurred during a “sudden quarrel,” it constituted manslaugh-
ter, regardless of the defendant’s intent. This court framed
the issue as “whether manslaughter ‘upon a sudden quarrel’
requires the element of intent to kill or whether strict account-
ability for another’s death ‘upon a sudden quarrel’ eliminates
intent to kill as an element of the felony designated as ‘man-
slaughter.’”30 examining the common-law roots of the crime of
25 § 28-305(1).
26 State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).
27 Id. at 488, 437 N.W.2d at 130 (citations omitted).
28 Id.
29 Pettit, supra note 6.
30 Id. at 445, 445 N.W.2d at 896.
728 	282 NebrASkA repOrTS

manslaughter, this court noted that “adequate legal provocation
eliminated malice from murder,” and “[f]or that reason, the
phrase ‘without malice,’ in reference to voluntary manslaugh-
ter, does not mean ‘without intention,’ but means a ‘willful act,
characterized by the presence of an intent to kill . . . .’”31 After
further analysis of decisions by other state courts holding that
an accidental killing is not voluntary manslaughter, the Pettit
court concluded:
Consequently, we hold that, to sustain a conviction
for voluntary manslaughter under § 28-305(1), that is, a
conviction for killing another, without malice, “upon a
sudden quarrel,” the State, by evidence beyond a reason-
able doubt, must prove that the defendant intended to kill,
and did kill, another. Thus, intentional criminal homicide
as the result of legally recognized provocation distin-
guishes voluntary manslaughter “upon a sudden quarrel”
from another intentional criminal homicide, murder in the
second degree, namely, “A person commits murder in the
second degree if he causes the death of a person inten-
tionally, but without premeditation.”32
Pettit disapproved of the language in Batiste to the effect that
an intentional killing is not an element of voluntary manslaugh-
ter as defined by § 28-305(1). but the opinion in Pettit was not
unanimous. A dissent reasoned that “common-law voluntary
manslaughter was subsumed by the crime of second degree
murder” and that “‘malice’ is a judicially supplied essential
element in second degree murder to distinguish second degree
murder from an intentional killing that is permitted by law
under certain circumstances.”33 The dissent concluded:
If a person is killed intentionally, whether done “upon
a sudden quarrel” or not, the act is obviously done with
malice, because killing another is an unlawful act unless
the killing is exempt under §§ 28-1406 to 28-1416. It
31 Id. at 450-51, 445 N.W.2d at 899, quoting People v. Brubaker, 53 Cal. 2d
37, 346 p.2d 8 (1959).
32 Id. at 460, 445 N.W.2d at 905.
33 Id. at 470, 474-75, 445 N.W.2d at 910, 913-14 (Fahrnbruch, J., dissenting;
White, J., joins).
STATe v. SMITH 	729
Cite as 282 Neb. 720

is logically impossible to distinguish between a kill-
ing done intentionally and one done without malice.
A killing committed without malice is one committed
unintentionally.34
In State v. Myers,35 we held that malice was an element of
second degree murder, notwithstanding the fact that it is not
included in the statutory definition of that crime. In holding
that a jury instruction which did not include malice as an ele-
ment constituted plain error, the Myers court reasoned: “by
omitting the element of malice from the second degree murder
instruction, the instruction in effect became one for the crime
of intentional manslaughter as defined by this court in [Pettit].
Malice is not an essential element of manslaughter.”36
Jones, decided approximately 5 months after Myers, extended
this reasoning to the issue before us in this case: whether an
intentional killing can constitute sudden quarrel manslaughter.
The court concluded:
Since our statutes define manslaughter as a killing
without malice, there is no requirement of an intention to
kill in committing manslaughter. The distinction between
second degree murder and manslaughter upon a sudden
quarrel is the presence or absence of an intention to kill.
[Pettit] was incorrect in its reasoning and holding, and to
that extent, it is overruled.37
In Burlison,38 this court reversed the holdings of Myers and
its progeny, including Jones, that malice was an element of sec-
ond degree murder. We held that the elements of second degree
murder included only those stated in the statutory definition
of the crime and that the definition was not constitutionally
overbroad. Burlison did not address the distinct but analytically
related holding of Jones that because the statutory definition of
34 Id. at 476, 445 N.W.2d at 913-14 (Fahrnbruch, J., dissenting; White, J.,
joins).
35 State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).
36 Id. at 909, 510 N.W.2d at 63.
37 Jones, supra note 6, 245 Neb. at 830, 515 N.W.2d at 659.
38 Burlison, supra note 24.
730 	282 NebrASkA repOrTS

manslaughter includes the phrase “without malice,” an inten-
tional killing can never constitute sudden quarrel manslaughter.
We turn to that issue now.
[7-9] We begin our analysis, as we did in Burlison, with
the language which the Legislature used to define the crime:
“A person commits manslaughter if he kills another without
malice, either upon a sudden quarrel, or causes the death of
another unintentionally while in the commission of an unlaw-
ful act.”39 It is a fundamental principle of statutory construc-
tion that penal statutes be strictly construed.40 The principal
objective of construing a statute is to determine and give effect
to the legislative intent of the enactment.41 In construing a
statute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense.42
The first clause of the statute defines manslaughter as a
killing “without malice,” and the remainder of the sentence
describes two ways in which the offense of manslaughter can
be committed. Logically and semantically, the phrase “without
malice” applies to both categories of manslaughter. In the sec-
ond clause of the sentence, which describes those categories,
the Legislature used the term “unintentionally.” but given its
syntactic placement in § 28-305(1), the word “unintentionally”
modifies the language of the statute describing the second
category of manslaughter, i.e., a killing committed “in the
commission of an unlawful act,” but not the first, i.e., “upon a
sudden quarrel.” There is no corresponding reference to intent,
or the absence thereof, in the preceding phrase defining sudden
quarrel manslaughter. Had the Legislature intended the word
“unintentionally” to apply to both categories, it could have
39 § 28-305(1).
40 See, State v. Huff, ante p. 78, 802 N.W.2d 77 (2011); State v. Lasu, 278
Neb. 180, 768 N.W.2d 447 (2009).
41 State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).
42 State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005); State v. Lotter, 266
Neb. 758, 669 N.W.2d 438 (2003).
STATe v. SMITH 	731
Cite as 282 Neb. 720

placed the word in the first clause of the sentence along with
the phrase “without malice.”
In Jones, this court essentially rewrote § 28-305(1) to accom-
plish exactly that. It did so based upon a perceived necessity
of distinguishing sudden quarrel manslaughter from second
degree murder, which was a part of the rationale for judicially
grafting the element of malice into the statutory definition of
second degree murder in Myers and subsequent second degree
murder cases prior to Burlison. The holding in Jones was based
on the premise that malice is the equivalent of intent to kill.
For the reasons which underlie our decision in Burlison, we
now conclude that this was error.
It is the province of the legislative branch, not the judi-
ciary, to define criminal offenses within constitutional bound-
aries.43 “[J]udicial construction is constitutionally permissible,
but judicial legislation is not.”44 The plain and unambiguous
language used by the Legislature to define the crime of man-
slaughter clearly specifies the different factors which distin-
guish the two categories of manslaughter from second degree
murder. With respect to manslaughter involving a killing in the
commission of an unlawful act, the distinguishing factor is the
absence of an intent to kill. but with respect to sudden quarrel
manslaughter, the distinguishing factor is that the killing, even
if intentional, was the result of a legally recognized provoca-
tion, i.e., the sudden quarrel, as that term has been defined by
our jurisprudence.45
The holding of Jones that an intentional killing cannot con-
stitute sudden quarrel manslaughter is inconsistent not only
with the language of § 28-305(1), but also with its common-
law roots. At common law, “homicide, even if intentional, was
said to be without malice and hence manslaughter if committed
43 See Burlison, supra note 24.
44 Id. at 201-02, 583 N.W.2d at 39 (Wright, J., concurring; Connolly and
Gerrard, JJ., join).
45 See State v. Woods, 249 Neb. 138, 542 N.W.2d 410 (1996) (Gerrard, J.,
concurring).
732 	282 NebrASkA repOrTS

in the heat of passion upon adequate provocation.”46 More than
a century ago, this court stated in Boche v. State47 that statutory
language which defined manslaughter as a killing “‘without
malice, either upon a sudden quarrel, or unintentionally, while
the slayer is in the commission of some unlawful act’” made
no change in the common-law definition of manslaughter. The
court further stated:
In the first class of cases referred to in the statute the
homicide must have been intentional, but in sudden pas-
sion or heat of blood caused by a reasonable provocation,
and without malice; in the latter clause the killing must
have been unintentional, but caused while the slayer was
committing some act prohibited by law . . . .48
In Pettit, this court undertook a thorough review of decisions
by other state courts which construed similar or identical statu-
tory provisions in a manner consistent with Boche.49 The same
holds true today. As one commentator notes:
Voluntary manslaughter in most jurisdictions consists
of an intentional homicide committed under extenuat-
ing circumstances which mitigate, though they do not
justify or excuse, the killing. The principal extenuating
circumstance is the fact that the defendant, when he
killed the victim, was in a state of passion engendered
in him by an adequate provocation (i.e., a provocation
which would cause a reasonable man to lose his normal
self-control).50
Common examples of this type of manslaughter include a kill-
ing provoked by the sudden discovery of a spouse in the act of
committing adultery and a killing provoked during a physical
altercation in which the participants voluntarily engaged.51
46 A.L.I., Model penal Code and Commentaries § 210.3, comment 1 at 44
(1980).
47 Boche v. State, 84 Neb. 845, 853, 122 N.W. 72, 75 (1909).
48 Id. at 854, 122 N.W. at 75.
49 See Pettit, supra note 6.
50 2 Wayne r. LaFave, Substantive Criminal Law § 15.2 at 491 (2d ed.
2003).
51 Id., § 15.2(b)(2) and (5).
STATe v. SMITH 	733
Cite as 282 Neb. 720

It is nonsensical to regard “sudden quarrel” as a provoca-
tion, as this court and many others have, but then conclude
that lethal response to the provocation must be unintentional in
order to constitute voluntary manslaughter. provocation is that
which incites another to do something.52 As one commentator
has observed, in the context of sudden quarrel manslaughter,
“[p]rovocation not only causes anger; it motivates the actor to
want to kill the provoker. proof, then, of adequate provocation
does not negat[e] intent. It magnifies it.”53
[10] In Burlison, we recognized that our duty “to ensure that
statutes are interpreted correctly is in no way diminished when
the error we perceive is our own.”54 For the foregoing reasons,
we conclude that the analysis and holding of Pettit was correct
and that the holding of Jones that “[t]he distinction between
second degree murder and manslaughter upon a sudden quarrel
is the presence or absence of an intention to kill” was error.55
We therefore overrule this holding in Jones and reaffirm the
holdings of Pettit and Boche that an intentional killing com-
mitted without malice upon a “sudden quarrel,” as that term
is defined by our jurisprudence, constitutes the offense of
manslaughter.
because of our holding today, the step instruction given in
this case was not a correct statement of the law. Specifically,
the step instruction required the jury to convict on second
degree murder if it found that Smith killed Harris intentionally,
but it did not permit the jury to consider the alternative possi-
bility that the killing was intentional but provoked by a sudden
quarrel, and therefore constituted manslaughter.
preJudice
[11] Having identified trial error, we must now consider
whether it was prejudicial or harmless. before an error in the
giving of jury instructions can be considered as a ground for
52 black’s Law Dictionary 1346 (9th ed. 2009).
53 Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a
Rationale, 73 J. Crim. L. & Criminology 421, 462 (1982).
54 Burlison, supra note 24, 255 Neb. at 196, 583 N.W.2d at 36.
55 Jones, supra note 6, 245 Neb. at 830, 515 N.W.2d at 659.
734 	282 NebrASkA repOrTS

reversal of a conviction, it must be considered prejudicial to the
rights of the defendant.56 The appellant has the burden to show
that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.57
A trial court is required to give an instruction where there is
any evidence which could be believed by the trier of fact that
the defendant committed manslaughter and not murder.58 but a
trial court is not obligated to instruct the jury on matters which
are not supported by evidence in the record.59 In the context of
this case, Smith was prejudiced by the erroneous jury instruc-
tion only if the jury could reasonably have concluded on the
evidence presented that his intent to kill was the result of a
sudden quarrel.
The only evidence of the events which transpired immedi-
ately prior to Harris’ death is the video recording of Smith’s
interrogation following his arrest, as summarized above. From
this, the jury could reasonably infer that Smith and Harris had
been arguing and that Smith was angry. but there is no evi-
dence explaining how or by whom the argument was started, its
duration, or any specific words which were spoken or actions
which were taken before Smith pushed Harris to the floor. And
most importantly, there is no evidence that Harris said or did
anything which would have provoked a reasonable person in
Smith’s position to push her from the bed and smother her with
a pillow. In the absence of some provocation, a defendant’s
anger with the victim is not sufficient to establish the requisite
heat of passion.60 Nor does evidence of a string of prior argu-
ments and a continuing dispute without any indication of some
sort of instant incitement constitute a sufficient showing to
warrant a voluntary manslaughter instruction.61
56 State v. Almasaudi, ante p. 162, 802 N.W.2d 110 (2011); State v. Erickson,
281 Neb. 31, 793 N.W.2d 155 (2011).
57 See State v. Almasaudi, supra note 56.
58 See Neb. rev. Stat. § 29-2027 (reissue 2008).
59 State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
60 Lyle, supra note 10.
61 Id.
STATe v. SMITH 	735
Cite as 282 Neb. 720

We conclude that there is no evidence in this record upon
which the jury could have concluded that Smith committed
sudden quarrel manslaughter instead of second degree mur-
der. We therefore conclude that the improper jury instruction
did not prejudice Smith or affect his substantial rights, and
does not require the reversal of his second degree murder
conviction.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
affirmed.
WriGht, J., not participating in the decision.
State of NebraSka , appellee , v.
richard a. halverStadt, appellaNt.
809 N.W.2d 480
Filed November 18, 2011. 	No. S-11-145.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law on
which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. ____: ____. Statutory language is to be given its plain and ordinary meaning. An
appellate court will not resort to interpretation to ascertain the meaning of statu-
tory words which are plain, direct, and unambiguous.
Appeal from the District Court for Lancaster County, Jodi
NelSoN, Judge, on appeal thereto from the County Court for
Lancaster County, JeaN a. lovell, Judge. Judgment of District
Court affirmed in part and in part reversed, and cause remanded
with directions.
Jeffry D. patterson, of bartle & Geier Law Firm, for
appellant.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
heavicaN, 	c.J., 	coNNolly, 	StephaN, 	mccormack , 	and
miller-lermaN, JJ.
736 	282 NebrASkA repOrTS