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06/09/95 STATE NEBRASKA v. DENNIS D. LOWE

June 9, 1995

STATE OF NEBRASKA, APPELLEE,
v.
DENNIS D. LOWE, APPELLANT.



Appeal from the District Court for Douglas County: Joseph S. Troia, Judge.

White, C.j., Caporale, Fahrnbruch, Lanphier, Wright, and Connolly, JJ., and Ronin, D.j., Retired. Connolly, J., Dissenting. Wright, J., joins in this Dissent.

SYLLABUS BY THE COURT

1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial.

2. Postconviction: Proof. A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.

3. Homicide: Intent. Malice is an element of second degree murder.

4. Indictments and Informations: Homicide: Intent. For an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused caused the death of another purposely and maliciously.

5. Jury Instructions: Homicide: Intent: Appeal and Error. The failure to include the element of malice in a jury instruction on second degree murder is prejudicial error.

6. Jury Instructions: Appeal and Error. Jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

PER CURIAM.

Dennis D. Lowe appeals the denial of his motion for postconviction relief by the district court for Douglas County. Lowe was found guilty of second degree murder on June 20, 1992, and is presently serving a life sentence. Lowe was convicted and sentenced as a result of an information and jury instructions which failed to include "malice" as an element of second degree murder. Malice is an essential element of second degree murder. The district court erred by denying postconviction relief. We reverse, and remand for a new trial.

BACKGROUND

The following statement of facts is summarized from the opinion of this court in State v. Lowe, 244 Neb. 173, 505 N.W.2d 662 (1993).

On the evening of January 10, 1992, Dennis D. Lowe went to a bar with some friends. Lowe had been drinking beer most of the day, and he stayed at the bar until closing time. After the bar closed, Lowe decided to go to a party, but got lost. Lowe continued to consume alcohol as he drove around searching for the party. Lowe stopped in an area known as Bum's Hollow to urinate, and then passed out or fell asleep in his truck.

Lowe testified that he was awakened by the victim, Victor Hempstead, undoing Lowe's jeans and groping his genitals. Lowe stated that he "'freaked, got scared'" and started swinging a large flashlight that had been in the cab of his truck. Id. at 175, 505 N.W.2d at 666. Lowe testified that he could not recall how many times he swung the flashlight or hit the person. He stated that he could hear the man snoring, but ...


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