CRIMINAL LAW

NEBRASKA CRIMINAL CODE REVISION-A DECADE OF LEGISLATIVE

PERSEVERANCEROLAND A. LUEDTKE*

FOREWORD

In 1935 Nebraska's own Roscoe Pound indicated the needfor criminal law revision. He stated:

I assume, then, that an overhauling of the substantivecriminal law must be a large part of any far-reachingprogram of improvement of punitive justice seeking en-during results. But if the results are to be enduring, theoverhauling must be intelligent, thorough-going andconsistent. Patchwork tinkering of criminal codes atevery session of the Legislature has long been the baneof criminal law. Long and critical preparation must gobefore the overhauling .... Our standard work oncriminal law in the United States is still Bishop. Indeed,Bishop's is still the only original and in some degreecreative, complete treatise which we have on the sub-ject. Certainly it is the only American book which hasconspicuously influenced our criminal law. It is now inits ninth edition (1923). But the eighth edition (1892) isthe last original edition and the work still speaks essen-tially from the date of its first edition (1856). Moreover,Bishop's Statutory Crimes (1873), 3 ed. (1901), a neces-sary supplement, and still the best we have, speaks fromthe nineteenth century on what is emphatically andcharacteristically a subject of the twentieth.1

On June 1, 1977, after forty years of this "patchwork tinker-ing" with the criminal laws of Nebraska, the Nebraska Legisla-ture passed into law, over the Governor's veto, a 767 page revi-

* B.A. 1949, University of Nebraska; J.D. 1951, University of NebraskaSchool of Law; Member of Nebraska State Bar, practicing attorney of Lincolnbar; 1967-Member of the Nebraska Legislature (1971-76 Judiciary CommitteeChairman; 1977-78 Speaker).

1. Quoted in GOVERNOR'S COMMISSION ON LAW ENFORCEMENT AND CRIMI-NAL JUSTICE, CRIMINAL LAW REVISION IN NEBRASKA (1st Draft, May 9, 1969)(Original source not known).

CRIMINAL LAW

sion of the Nebraska criminal law.2 This massive piece of legis-lation, consisting of four separate legislative bills and known asthe "Criminal Code" package, is unique not only because of itssheer bulk but also because it represents the culmination ofalmost a decade's work by numerous Nebraska legal scholars.When asked to write an article about the new Criminal Code, itoccurred to me that to do so at this time would be premature. Asit is currently written, the Criminal Code will not become effec-tive until July 1, 1978. 3 However, during the intervening time,numerous committees of the 1978 Legislature will take the op-portunity to read and suggest revisions of the new Code. In fact,the Criminal Code specifically establishes such a review com-mittee. 4 It appears inevitable that changes will be suggested andadopted in the Criminal Code before its effective date.

My purpose, therefore, is not to write an in-depth legalanalysis on specific sections of the Code itself, but rather toprovide an historical and structural summary of the CriminalCode from my perspective as a lawyer and legislator. It is hopedthat this article will provide a useful background for futurearticles written in response to substantive changes in the Crimi-nal Code and evolving case law. In this way, the practicingattorney can gain some practical knowledge as to the changes inthe Criminal Code and how these will affect both the bench andbar in Nebraska.

HISTORICAL BACKGROUND

The Nebraska Territorial Legislature enacted the state'sfirst penal code on March 15, 1855. 5 The Legislature merelyadopted the Iowa Criminal Code passed in 1838 by the Iowa

2. L.B. 38, 39, 40, and 41, 85th Legis., 1st Sess. (1977) [hereinafter cited asL.B. 38, L.B. 39, L.B. 40, or L.B. 41].

3. L.B. 38, § 325; L.B. 39, § 340; L.B. 40, § 321; L.B. 41, § 64.4. L.B. 38, § 320.5. Act of March 15, 1855, 1855 Neb. Laws 212. The Act reads as follows:

AN ACT relative to criminal laws.Section 1. Be it enacted by the Council and House of Representativesof the Territory of Nebraska, That the Fourth Part of the Code of Iowa,beginning on page three hundred and forty-nine as published in theauthorized edition of said code, so far as applicable, and not inconsistentwith the laws of this Territory, be and the same is hereby declared to bein full force and effect in this Territory.

§ 2. That it shall be the duty of the persons who superintend thepublication and indexing of the laws of this Territory, passed at thissession to number the sections in the said Criminal Code, consecutivelythrough the same, beginning at number one, and change whenever itoccurs in the said Code, the State of Iowa, to the Territory of Nebraska.

§ 3. This act to take effect and be in force from and after itspassage.

The Code itself is set out in 1855 Neb. Laws 224-328.

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Territorial Legislature. 6 Although the source relied upon by theIowa Legislature is uncertain, it may be assumed that the Eng-lish statutes and common law had a profound influence.

Shortly after Nebraska became a state in 1867, the initialCriminal Code came under scrutiny. In response the NebraskaLegislature, in 1875, passed "an act for the punishment of play-ers of three card monte, ' 7 and also amended forty of the ap-proximately 800 Criminal Code provisions. 8 These amendmentswere chiefly concerned with the problems of drinking, gambl-ing, livestock regulation, tavern owners, vagrants, prostitution,criminal procedure, and the killing of wild buff alo.9

During the 1870's and 1880's the Nebraska Legislature add-ed to the Criminal Code. One of the more important amend-ments reduced the penalty for horse stealing. 10 With this type ofisolated change, Nebraska's criminal law developed in apiecemeal fashion. Through the decades, legislators and judges,reacting to the needs of their time, passed additional laws andwrote interpretive decisions that only gradually changed thetenor of the Code. But as the times changed, these laws anddecisions remained. Obsolete statutes were only repealed inrare situations and then not unless the statute was either oner-ous and harmful enough to warrant public attention or undulyrestrictive of economic gain in an area where its enforcement nolonger served public policy. Many Nebraska criminal statuteswere obsolete either in their wording, penalty, or substance."Such obsolescence frequently breeds disrespect for other provi-sions of the law, thus making the task of enforcement moredifficult. The need for revision of Nebraska's criminal law wasnoted in State v. Baker.2 Justice McCown, dissenting, stated:"[T]he language of section 38-533, R.R.S. 1943, is only typical ofthe archaic and confused state of our present criminal code. Forexample, section 28-535, R.R.S. 1943, still authorized imprison-ment in the 'dungeon of the jail.' Revision is long overdue.' 13

A few examples of such obsolete criminal statutes are thefollowing prohibitions and penalties: (1) cursing by anyone over

6. Act of Jan. 25, 1839, 1838 Iowa Laws 150-82.7. Act of Feb. 25, 1875, 1875 Neb. Laws 21.8. Act of Feb. 25, 1875, 1875 Neb. Laws 2-18.9. Id.

10. Act of Feb. 27, 1883, ch. LXXXVII, 1883 Neb. Laws 332. The penalty wasreduced from 15 years imprisonment to a maximum of 10 years and a minimumof one year.

11. See notes 14-18 and accompanying text infra.12. 183 Neb. 499, 161 N.W.2d 864 (1968).13. Id. at 502, 161 N.W.2d at 867.

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the age of 14 with fines not to exceed one dollar, nor less thantwenty-five cents for each offense; 14 (2) promotion or participa-tion in endurance contests providing for a penalty of imprison-ment in the county jail for a maximum term of six months or afine of up to $500, or both; 15 (3) the display or possession of anyred and black flag, subject to a maximum fine of $1000 or up tofive years imprisonment; 6 (4) the unauthorized wearing of thebadge of the Grand Army of the Republic 7 or the insignia of themilitary order of the Loyal Legion of the United States with apenalty of imprisonment in the county jail for a maximum termof thirty days or a fine of twenty dollars or both. 8 .

Since the major revisions of 1875, except for minor altera-tions, the Criminal Code has remained substantially unchang-ed. Thus many of the provisions have become obsolete, redun-dant, inconsistent, and vague. Realizing this, in 1969, the Ne-braska Legislature passed Resolution 39 authorizing the Gover-nor's Commission on Law Enforcement and Criminal Justice torecommend revisions of the Criminal Code. 19 To aid and assistin this project of Criminal Code revision, an advisory committeewas formed whose members included five members of the legis-lature, three district judges, three county judges, and nine prac-ticing attorneys.

The initial revision of the Nebraska Criminal Code tookover three years and included numerous public hearings heldacross the state by the Judiciary Committee. These were attend-ed largely by county attorneys, county judges, and defense andother trial lawyers. Finally, the Judiciary Committee in-troduced L.B. 8 in 1973.20 This completely revised Chapter 28 ofthe Criminal Code.21 At the same time, Senator John DeCampintroduced L.B. 32922 which was a recodification of the Nebras-ka Criminal Code based on an application of the recently enact-ed Hawaii Penal Code.23

Between the introduction of the bills and enactment of theCriminal Code package, a study was conducted on the merits of

14. NEB. REV. STAT. § 28-936 (Reissue 1975).15. Id. §8 28-972 to -974 (Reissue 1964) (repealed 1973).16. Id. 8H 28-1104 to -1105 (Reissue 1975). This section is not explicitly re-

pealed by the Criminal Code "package".17. Id § 28-1221 (Reissue 1962) (repealed 1962).18. Id. § 28-1221 (Reissue 1975). This section is not explicitly repealed by the

Criminal Code "package".19. NEB. LEGIS. J., 80th Legis., 1st Sess. 1589 (1969).20. NEB. LEGIS. J., 83rd Legis., 1st Sess. 43 (1973).21. NEB. REV. STAT. § 28-101 to -1462 (Supp. 1977).22. NEB. LEGIS. J., 83rd Legis., 1st Sess. 329 (1973).23. HAW. REV. STAT. §8 701-100 to 712-1256 (1975).

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both pieces of legislation. The Judiciary Committee completelyannotated both L.B. 8 and L.B. 329 showing exactly how thesewould change existing criminal law.24 This study revised L.B. 8and became known as the white copy of the bill. The result wasan incorporation of the theory contained in L.B. 329 with thepracticalities contained in L.B. 8. As work continued on thisstudy of the Nebraska Criminal Code, the need for revisionsand reclassifications of the statutory penalties provided in theCode became apparent.

It was to this end that a team of lawyers undertook a closeexamination of all other chapters in the Nebraska statutes con-taining criminal penalties. As a result, in 1976, the companionbills known as L.B. 70625 and L.B. 70726 were introduced tocomplement the revision of Chapter 28 of the Nebraska Stat-utes, which by this time had been renumbered L.B. 623.27 In the1977 session of the Legislature, L.B. 623 was reintroduced andnumbered L.B. 38 with companion bills L.B. 39, 40, and 41.28 Theintent of these revisions was not only to classify offenses butalso to eliminate many that were overlapping and interlacing. Itwas not the aim of the sponsors of L.B. 8 and L.B. 623 to enact"extensive reforms" of the criminal law but rather to classify inan orderly fashion all the criminal provisions passed by thelegislature during the past century. In fact, such highly controv-ersial criminal law areas as abortion, obscenity, rape, and thedeath penalty were handled as separate legislative bills. Theultimate purpose of these separate bills was to allow integrationof these statutes into the comprehensive Criminal Code onceenacted. Thus, the major objectives of the new Nebraska Crimi-nal Code are: (1) consolidation, simplification, and clarificationof substantive criminal law; (2) identification and proscriptionof all significantly harmful criminal conduct as precisely aspossible; (3) rational grading of offenses according to the harmthey cause or threaten; (4) collection in a single code of allsignificant penal laws; and (5) modernization of Nebraska'sCriminal Code.

Upon passage of the new Criminal Code, Nebraska joinedover forty other jurisdictions, including the federal government,

24. Judiciary Committee of the Nebraska Legislature, Working Papers andPreliminary Interim Study Report on a Revised Nebraska Criminal Code, 83rdLegis., 2d Sess. (Feb. 4, 1974).

25. NEB. LEGIS. J., 84th Legis., 2d Sess. 139 (1976).26. Id. at 141.27. Id. at 99.28. 85th Legis., 1st Sess. (1977).

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which have recently revised or are currently revising their crim-inal laws.29 This wave of criminal law reform is long overdue,both in Nebraska and elsewhere, as the subject has been sorelyneglected for over a century.

One important feature of the Nebraska Criminal Code is theadoption, for the first time, of a classification system. Prior tothe revision of the Code, Nebraska's criminal law was a patch-work of statutes unrelated to each other or to any unifying idea.Punishments were prescribed individually in the statutes defin-ing the various offenses. The major fault with any method ofascribing penalties to individual statutes lies in sentencing dis-parities of offenders engaged in substantially identical conduct.In addition, this form of statutory law provided little chance forthe Legislature, when enacting new laws, to relate the sanctionstherein to those in already existing statutes. The recognition ofthis disorganization and the desire to obtain a lasting solution tothe problem, caused many authorities interested in criminal lawreform to request a systematic classification of offenses. Themost prevalent type of classification system is one whichcategorizes crimes according to their degree of severity. Theobjective of such a system is to provide a method for relatingparticular offenses to a uniform and rational sentencing struc-ture. Adoption of a classification system should assure logic andconsistency in the present criminal law and any future criminalenactments.

Classification of offenses, however, requires a thorough ex-amination and comparison of all offenses and penalties. Such asystem results not only in the creation of a rational sentencingstructure but also serves as a guide to future amendments. Now,before any new crime may be placed into a category, the legisla-ture must relate it to an existing crime. A problem faced instructuring a classification system is the determination of thenumber of classifications necessary to provide a sufficientlybroad categorization of criminal offenses. At the same time, itmust be recognized that the length and nature of imprisonmentauthorized by the Code must rest partially upon the seriousnessof the crime and not, as has been argued, solely on the characterof the offender.

The Nebraska Criminal Code establishes nine classes ofoffenses, four of which are felony and five of which are misde-meanor classifications. 30 Even though few in number, these

29. Senator Hatfield recently introduced a bill in the United States Senatewhich would "codify, revise, and reform Title 18 of the United States Code." S.1437, 95th Cong., 1st Sess., 123 CONG. REC. 6831-41 (1977).

30. L.B. 38, §§ 5-6.

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sanctions can be multiplied by the court into many sentencingalternatives. However, these alternatives will not be basedmerely on the crime committed but rather on both the individu-al and the circumstances surrounding the crime. This formula-tion should provide the court with ample sentencing alterna-tives without creating the chance that unnecessary and sense-less distinctions will later reappear in the Criminal Code.

In addition, the integrated structure of the Nebraska Crimi-nal Code facilitates future changes that will keep it abreast of arapidly changing society. This basic policy of classification ofoffenses and general provisions will further provide Nebraska'sLegislature with principles to guide it when later integratingcriminal penalties located outside of the Code itself. Law, likeeverything, changes with the times. The jet and computer age,electronic transfer banking, and a more mobile population haveall brought about a myriad of new "white collar" crimes neverbefore anticipated. Criminal law is constantly revised directlythrough case law and indirectly through the values and at-titudes of society. All of these revisions reflect pressure formore sophisticated legal restrictions on the use of these new-found advances in science and technology.

STRUCTURE OF THE CRIMINAL CODE

The Criminal Code is comprised of four legislative bills:L.B. 38, 39, 40, and 41. L.B. 38, being the main bill, contains notonly the various structure provisions but also new substantivelaw. L.B. 39, 40, and 41, the companion bills, reclassify the penal-ty provisions found throughout the remainder of Nebraska stat-utes in accordance with the classification structures establishedin L.B. 38. L.B. 38, which contains nearly the whole of Nebras-ka's substantive criminal law, is subdivided into thirteen arti-cles. Article One essentially explains the Code. It contains lan-guage concerning the purposes of the Code and the principlesfollowed during the drafting of its provisions. It also containsthe proposed classifications for felonies and misdeameanors.As previously mentioned, the Code is comprised of nine sepa-rate penalty classifications: four felony and five misdemeanor.In addition to these nine basic categories, the Class I felonyclassification contains two additional subdivisions and theClass III misdemeanor classification contains one additionalsubdivision. The classification and corresponding penalty pro-visions contained in the Code are as follows:

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FELONY

Class I felony ......................... DeathClass IA felony ...................... Life imprisonmentClass IB felony ...................... Maximum-life imprison-

mentMinimum-ten years impris-onment

Class II felony ........................ Maximum-fifty yearsimprisonmentMinimum-one year impris-onment

Class III felony ...................... Maximum-twenty years im-prisonment, or twenty-fivethousand dollars fine, orbothMinimum-one year impris-onment

Class IV felony ...................... Maximum-five years im-prisonment, or ten thou-sand dollars fine, or bothMinimum-none

MISDEMEANORClass I misdemeanor ............ Maximum-not more than

one year imprisonment, orone thousand dollars fine,or bothMinimum-none

Class II misdemeanor .......... Maximum-six months impris-onment or one thousanddollars fine, or bothMinimum-none

Class III misdemeanor ........ Maximum-three months im-prisonment, or five hun-dred dollars fine, or bothMinimum-none

Class IIIA misdemeanor ..... Maximum-three months im-prisonment, or five hun-dred dollars fine, or bothMinimum-none

Class IV misdemeanor ......... Maximum-no imprison-ment, five hundreddollars fine

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Minimum-one hundred dol-lars

Class V misdemeanor .......... Maximum-no imprison-ment, one hundreddollars fineMinimum-none

3 1

Further, Article One, 32 the nucleus of the entire package,explains the penalty provisions and sentencing alternatives ofthe Code. Understanding this article enables one to perceive theessentials of the entire provision. Finally, definitions of theterms found throughout the Code are contained here.33

Article Two, titled "Inchoate Offenses," covers those crimeswhich are usually only collateral and incidental to the commis-sion of one of the more basic offenses, but which are, neverthe-less, complete crimes in themselves. 34 The article covers thepreliminary crimes of criminal attempt,35 conspiracy, 36 acces-sory to a crime,37 and aiding in the commission of a crime.38 Aunique feature of the Code is that, unlike present law, whichhandles criminal attempt through a series of statutes dealingwith specific crimes,39 the Code utilizes a general section design-ed to cover all attempted criminal activity. Although elementsof the crimes of criminal attempt remain constant, the underly-ing criminal activity may vary greatly. The penalty for convic-tion of criminal attempt is one classification less than the sub-stantive offense itself.4" By so incorporating a general attemptsection, the drafters hoped not only to fill the numerous gaps inpresent law but also to standardize the particular offensethrough the removal of confusing and overlapping statutes cur-rently in force.

Article Three, entitled "Offenses Against the Person", cov-ers those offenses constituting crimes against the integrity of

31. Id.32. Id. §§ 1-9.33. Id. § 9.34. Id. 88 10-15.35. Id. § 10.36. Id. §§ 11-12.37. Id. § 13.38. Id. §§ 14-15.39. See, e.g., NEB. REV. STAT §§ 28-501 to -504.04 (Reissue 1975).40. L.B. 38, § 10(4).

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the person as contrasted to those crimes involving property.4 1

The specific crimes covered include, among others, all degreesof homicide, 42 assault,43 kidnapping,44 sexual assault,45 and illeg-al abortion.46 Article Four, on the other hand, proscribes allillegal activity regarding drugs.47 It includes every offense fromthe misuse of legal drugs to the use of drugs for which posses-sion itself is a crime. The current Nebraska Criminal Code 48 andthe changes embodied in Article Four49 incorporate federaldrug schedules regarding the classifications of various con-trolled drugs. As the federal schedules are generally revised ona regular basis, it is probable that this portion of the Code willalso require revision sometime in the near future.

Article Five concerns itself with those crimes affectingproperty.5 0 It is in this area that the Code has extensively revisedpresent law. The most needed and notable changes made in theNebraska Criminal Code involve provisions covering theft andrelated offenses. These new provisions consolidate all statutesrelating to intentional misappropriation of another's property.A single offense, theft, now includes what was previously aseries of distinct offenses known as larceny, embezzlement, ob-taining by false pretenses, extortion, and receiving stolen pro-perty. Although the former criminal statutes in Nebraska re-tained historical distinctions between larceny, embezzlement,and obtaining property by false pretenses, these distinctions nolonger serve a practical purpose. The Nebraska Criminal Codefollows the rationale of the Model Penal Code. It eliminateshighly technical distinctions between the various misappropria-tion offenses and consolidates them into one comprehensivedefinition of the term theft.51 Consolidation eliminates later pro-cedural difficulties caused by the obscure distinctions the oldCode drew between the traditional offenses. Thus the procedur-al rule that a defendant charged with one offense cannot beconvicted by proving another, need no longer concern the pract-icing attorney.

A person is now guilty of theft if he obtains control over

41. Id. §§ 16-60.42. Id. §§ 18-22.43. Id. §§ 23-25.44. Id. § 28.45. Id. §§ 31-38.46. Id. §§ 40-60.47. Id. §§ 61-99. This article is entitled "Drugs and Narcotics."48. NEB. REV. STAT. § 28-4117 (Reissue 1975).49. L.B. 38, § 65.50. Id, §§ 100-122. This article is entitled "Offenses Against Property."51. Id. § 109.

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property in which another person has a lawful interest and heintentionally deprives that person of his property.52 This defini-tion should allow the courts to examine conduct involving pro-perty much more realistically than the inconsistent statutes didin the past. By employing a consolidated definition of theft, theNebraska Criminal Code provides procedural advantages toboth the state and the defendant. Prosecutors will be protectedagainst a finding of a material variance when a conviction isappealed. Successive trials, first under one theory of larcenyand then under another, should not now be necessary.53 Thisprocedural simplification will contribute to swifter justice, lesscrowded dockets, and fewer appeals. Defense lawyers shouldno longer be confronted with a confusing assortment of statu-tory crimes, artificial and arbitrary distinctions among relatedoffenses, and irrationally disparate penalties. Finally, neithertrial nor appellate judges will be constrained to make delicatedistinctions between one form of larcenous crime and another.

The Nebraska Supreme Court recently i ighlighted the needfor a revision of the state's theft laws. In State v. Williams,5 4 thecourt reversed an embezzlement conviction, noting that section28-543 of the Nebraska statutes applies only to persons "chargedby law" with the collection or disbursement of public money.5

The court held that the defendant was not charged by law withsuch duties, and therefore was not within the class of personscontemplated by this particular embezzlement statute.56 Thecourt stated: "[T]he evidence clearly would have supported aconviction under section 28-538, R.R.S. 1943, which appliesamong others to 'employees' of any employer and 'money...belonging to other persons, body politic or corporate.' ,,57

It should be noted that past Nebraska criminal statutes con-tained over twelve sections concerning different forms of em-bezzlement. It is not surprising then, that an element of confu-sion existed as to which section applied to a given crime. If therevised Nebraska Criminal Code had been in effect at the timeof State v. Williams, the state simply could have filed chargesalleging theft. The theft sections of the new Code eliminate thepossibility of charging the defendant with the wrong statute. Acharge of theft now includes all theft related offenses, and as a

52. Id. § 113.53. Id. § 112.54. 188 Neb. 565, 198 N.W.2d 187 (1972).55. Id. at 566, 198 N.W.2d at 188.56. Id.57. Id. at 567, 198 N.W.2d at 188.

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result convictions now require only the introduction of compe-tent evidence. The penalty provisions of these sections eliminateinequalities for the penalties prescribed for various types ofproperty misappropriation. No longer will a chicken thief re-ceive five years imprisonment while a person who steals a tele-vision set escapes with a mere six month sentence.

Article Six of the revised Criminal Code covers all illegalactivities involving fraud and deception. 8 This article coversoffenses such as forgery, 9 the issuance of bad checks,6 0 imper-sonation of a police officer, 61 and the alteration of certain iden-tification numbers.62 Numerous offenses, which prior lawtreated as separate crimes, are now classified and categorizedwith similar offenses.

Article Seven concerns itself with all illegal activities caus-ing harm to family relationships. 63 This article covers offensessuch as bigamy,64 abandonment,6 5 incest,66 and child abuse.67

The Code retains most of the past law with very minor change.68

The Code also collects these related offenses from throughoutthe statutes, places them under one heading, and classifies themaccording to the inherent structure of the Code.

The provisions of Article Eight of the Code relate to moraloffenses, covering those activities society deems injurious topublic morality and decency.6 9 The substantive provisions ofthis section deal with prostitution,0 debauchery of minors,7'public indecency,7 2 pornography,73 and distribution of obscenematerials. 74 The revised Code embodies few substantivechanges in this area. The sections relating to pornography andobscenity, for example, remain exactly the same as they wereunder prior law. 75

58. L.B. 38, §§ 123-139. This article is entitled "Offenses Involving Fraud."59. Id. §§ 123-128.60. Id. § 133.61. Id. § 131.62. Id. §§ 138-139.63. Id. §§ 140-156. This article is entitled "Offenses Involving the Family

Relation."64. Id. § 140.65. Id. § 144.66. Id. §§ 141-142.67. Id. § 146.68. See, e.g., NEB. REV. STAT. §§ 28-901 to -906 (Reissue 1975).69. L.B. 38, §§ 157-185. This article is entitled "Offenses Relating to Morals."70. Id. § 157.71. Id. § 161.72. Id. § 162.73. Id. § 164.74. Id. § 169.75. NEB. REV. STAT. §§ 28-920 to -926.33 (Reissue 1975).

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Article Nine is entitled "Offenses Involving Integrity andEffectiveness of Government Operation. 7 6 It regulates thatconduct which may impugn the integrity of, or impede the effec-tiveness of, government operations. This article of the Codecovers offenses such as resisting arrest,7 7 obstruction of a peaceofficer, 78 and interference with court proceedings.79 ArticleNine changes the substantive law very little. Two of the changesaugment present law. One provision requires physicians to re-port the treatment of a person injured by violence. 80 The secondmakes it unlawful to bring implements of escape into a deten-tion facility.

81

Offenses covered by Article Ten are those affecting thepeace and welfare of the general public.82 Protracted floor de-bate regarding this article resulted in the repeal of numeroussections of the former law that had allowed certain governmentofficials to declare a state of emergency when the danger of ariot was imminent.83 It was felt that these laws, enacted becauseof the passions aroused during the late sixties and early seven-ties, were no longer necessary and could easily be abused. Final-ly, Article Ten now contains only three sections covering crueltyto, or indecency with, animals.84

Article Eleven, entitled "Gambling," covers unlawful con-duct involving games of chance. 85 This article defines first, sec-ond, and third degree gambling,86 and enumerates those circum-stances constituting lawful possession of gambling records ordevices.8 7 It also delineates rules covering contests and lot-teries.88 However, the 1978 session of the Nebraska Legislatureis scheduled to substantially revise this article of the Code.

Article Twelve covers unlawful conduct creating a hazardto public health and safety. 89 Substantive provisions in this arti-

76. L.B. 38, §§ 186-213.77. Id. § 189.78. Id. § 191.79. Id. §§ 200-208. This covers the following crimes: perjury, bribery, subor-

dination of perjury, jury tampering, interference with physical evidence, andsimulating legal process.

80. Id. § 187.81. Id. § 198.82. Id. §§ 214-216. This article is entitled "Offenses Against Public Peace,

Order, Decency."83. NEB. REV. STAT. §§ 28-827 to -832 (Reissue 1975).84. L.B. 38, §§ 214-216.85. Id. §§ 217-232.86. Id. §§ 218-220.87. Id. §§ 221-229.88. Id. §§ 230-232.89. Id. §§ 233-284. This article is entitled "Offenses Against Public Health

and Safety."

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cle govern the use of firearms and explosives, providing penal-ties for their misuse.90 In addition, various licensing and permitprovisions regulate the use and transportation of both explo-sives and combustibles. 91 The past law on this subject was sub-stantially retained with minor changes.2 However, the penaltysections were revised to fit within the structure of the Code.Finally Article Thirteen, as implied in the title "MiscellaneousOffenses," covers those offenses not classified under any of thepreceding articles.93

AREAS OF CHANGE IN THE CRIMINAL CODE

Although many changes were made in the form of the Crim-inal Code through the deletion or revision of obsolete sections,the Criminal Code package did not substantially revise Nebras-ka's substantive criminal law. Wherever possible, current provi-sions were retained. Since there were over 1200 misdemeanorscontained throughout the various chapters of the Nebraska stat-utes, it was impossible to include every section containing acriminal sanction in the Criminal Code. Only the most im-portant and most commonly used sections were included. Anyothers, although modified by the revised penalty sections, willnot now be found in the revised Chapter 28, but rather remainscattered through the Nebraska statutes. As was previouslynoted, the most extensive revision took place in the area ofproperty crimes.94 It should be emphasized that care was takenso that the elements or the makeup of most of the major crimesremain the same. Great effort was also made to retain anylanguage which possessed a precise legal definition throughyears of court interpretation with incorporation of that lan-guage into the codification. This prevented the loss of years ofprecedent.

EFFECT OF THESE CHANGESON NEBRASKA'S LAWYERS

It is difficult at this point to speak of how the variouschanges incorporated into the Nebraska Criminal Code willaffect Nebraska's lawyers, because until the Code's effectivedate of July, 1978,15 the Code is still subject to alteration. It is

90. Id. §§ 234-271.91. Id. §§ 261-277.92. See NEB. REV. STAT. §§ 28-1001 to -1011.34 (Reissue 1975).93. L.B. 38, §§ 285-328.94. See notes 48-55 and accompanying text supra.95. L.B. 38, § 325.

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definite, though, that Nebraska will finally have a comprehen-sive criminal code incorporating a classification system. There-fore, the most beneficial effect of the adoption of the revisedCriminal Code is that it enables lawyers to find criminal sanc-tions in one chapter of the Code, thus eliminating the need toanalyze all the chapters of Nebraska's statutes. Consolidation ofall the major criminal sanctions in one classification systemeases the burden of both lawyers and laymen in their determi-nation of the consequences of actions taken in contravention ofNebraska law.

Such structuring will also ease the task of future legislativeformulations of public policy in such controversial areas asgambling, victimless crimes, sentence structure revision, andmeans of reviewing sentencing disparities.

MISCELLANEOUS DISCUSSION-MODEL PENAL CODEVIS A VIS NEBRASKA CODE REVISION

The point has been stated that perhaps Nebraska would beahead of the game if it simply adopted the entire Model PenalCode and then deleted irrelevant provisions, rather than under-take the struggle involved in completely revising the CriminalCode. For this reason, it is important to establish the reasoningbehind the decision to revise the Code.

The Model Penal Code embodies a complete alteration ofthe criminal law and makes changes in such related areas asparole, probation, and corrections. In addition, many areas ofcriminal procedure such as arraignment and bail are affectedby the Model Code. It might be worthwhile to examine theModel Penal Code itself. As the name implies, the Code wasintended only as a model, a blueprint for states to use whenrewriting their criminal law. It was not intended to be a uniformact to be adopted by the states in its entirety. As of this writing,no state has adopted the entire Model Penal Code. Each statehas its own constitution and legal history based on case law.Certain provisions in the Model Penal Code, such as parole, runinto constitutional restrictions in the various states 6 Also, aspreviously mentioned, each state has refined its legal languagethrough court decisions. By enacting the Model Penal Code inits entirety, Nebraska would disregard years of precedent. Thiscould have the effect of creating chaos in the criminal justicesystem until the time certainty would again be re-establishedthrough court determination.

96. Compare NEB. CONST. art. 4, § 13 with MODEL PENAL CODE §§ 305.1 to .19(Proposed Official Draft 1962).

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CRIMINAL LAW

Nebraska used the Model Penal Code as a blueprint, insert-ing its own language to reduce the possibility of confusion.Article Five of the Code, dealing with theft, is an excellentexample of utilizing Model Penal Code form while at the sametime retaining legal language more familiar to Nebraskalawyers.

The last draft of the Model Penal Code was written in 1962.Many of its provisions have since been modified or renderedconstitutionally suspect by the United States Supreme Court.This is particularly noticeable in the areas of abortion and obs-cenity.

AFTERWORD

Since the Nebraska Legislature adopted the Iowa CriminalCode in 1855, Nebraska's criminal law developed in a piecemealfashion. Lawyers and legislators have constantly struggled toknow and understand this unwieldly, confusing, and redundantCode. Opinions of the United States Supreme Court underChief Justices Warren and Burger and similar decisions by theNebraska Supreme Court placed the Nebraska Legislature onnotice of the need to reform its antiquated criminal law in orderto meet the tests of the United States Constitution. "Patchworktinkering" of the Criminal Code at almost every session of theNebraska Legislature finally necessitated its complete revision.Effective prevention of crime and promotion of public safety ina free society depends upon the understandability, clarity, relia-bility, and acceptance of such a code by that society. Indeed, theentire criminal justice system is dependent upon the properrevision and recodification of the Nebraska Criminal Code.

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