29-2027. Verdict in trials for murder; conviction by confession; sentencing procedure.
In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it is murder in the first or second degree or manslaughter; and if such person is convicted by confession in open court, the court shall proceed by examination of witnesses in open court, to determine the degree of the crime, and shall pronounce sentence accordingly or as provided in sections 29-2519 to 29-2524 for murder in the first degree.
Source
Annotations
1. Degree of offense
2. Plea of guilty
3. Habeas corpus
1. Degree of offense
Where murder is charged, a court is required to instruct the jury on all lesser degrees of criminal homicide for which there is proper evidence before the jury; this statutory rule does not apply when the charge is attempted murder. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
In a murder trial, the district court was required to instruct the jury as to the lesser-included offenses of second degree murder and manslaughter where there were no eyewitnesses to the deceased's death and the evidence adduced at trial was largely circumstantial. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
When a proper, factual basis is present, a court must instruct a jury on the degrees of criminal homicide, that is, the provisions of this section are mandatory. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
When there is a proper, factual basis, a court is required to instruct on the degrees of criminal homicide even in the absence of a requested instruction regarding the lesser degrees of criminal homicide. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984).
This section requires an instruction be given on such lesser degrees of homicide as find support in the evidence. State v. Drew, 216 Neb. 685, 344 N.W.2d 923 (1984).
The trial court is required, without request, to instruct the jury on such lesser degrees of homicide as to which the evidence is properly applicable. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).
When a defendant is charged with murder in the first degree, it is reversible error for the court to fail to instruct the jury on such lesser degrees of homicide as the evidence could support, even if no request is made for such an instruction. State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).
Guilty plea following deliberate killing of unarmed victim clearly justified finding of second degree murder. State v. Thompson, 199 Neb. 67, 255 N.W.2d 880 (1977).
Where different inferences may be drawn, court must submit different degrees to jury. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).
This section prescribes the duty of court and jury in ascertaining the degree of offense and imposition of sentence. Moore v. State, 148 Neb. 747, 29 N.W.2d 366 (1947).
Degree of murder is ordinarily for jury; different degrees of murder must be submitted to jury under evidence and circumstances authorizing different inferences as to degree. Denison v. State, 117 Neb. 601, 221 N.W. 683 (1928).
In all trials for murder, the provisions of this section are mandatory. Bourne v. State, 116 Neb. 141, 216 N.W. 173 (1927).
Jury is required, if it find accused guilty, to find whether guilty of murder in first or second degree or manslaughter; jury may acquit accused of degree charged and convict of lesser degree. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Verdict of guilty which does not ascertain whether it be murder or manslaughter confers no power on court to pass sentence. Parrish v. State, 18 Neb. 405, 25 N.W. 573 (1885).
Failure to negative fact that crime was of higher degree than that found is no ground for reversal. Williams v. State, 6 Neb. 334 (1877).
2. Plea of guilty
Where the defendant pleads to a specific degree of murder, this section does not apply. State v. Belmarez, 254 Neb. 467, 577 N.W.2d 264 (1998).
Proceedings in error carried on within statutory term after final judgment are required to review alleged error of trial court in failing to examine witnesses in open court to determine degree of guilt. Newcomb v. State, 129 Neb. 69, 261 N.W. 348 (1935).
Instruction given by trial court constituted a determination of degree of guilt on plea of guilty. Cole v. State, 105 Neb. 371, 180 N.W. 564 (1920).
3. Habeas corpus
One charged with murder in first degree and convicted of second degree cannot obtain release on habeas corpus on ground he was convicted of a separate and distinct offense from that charged. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Regularity of proceedings leading up to sentence cannot be inquired into by habeas corpus. Fuller v. Fenton, 104 Neb. 358, 177 N.W. 154 (1920).