Opinion
No. 38114.
Filed January 21, 1972.
Criminal Law: Sentences: Appeal and Error. A sentence within the limits prescribed by statute will not be disturbed in the absence of an abuse of discretion.
Appeal from the district court for Douglas County: DONALD J. HAMILTON, Judge. Affirmed.
Thomas P. Lott, for appellant.
Clarence A. H. Meyer, Attorney General, and Harold Mosher, for appellee.
Heard before WHITE., C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The defendant was charged with robbery under the provisions of section 28-414, R.R.S. 1943, found guilty by a jury, and sentenced to serve a term of not less than 3 years nor more than 10 years in the Nebraska Penal and Correctional Complex. He appeals. The sole assignment of error is that the sentence is excessive. The claim is founded upon the premise that the crime of which the defendant was found guilty was a first offense and that he is only 19 years of age.
The record discloses the defendant and a companion accomplished the robbery of a grocery store and its proprietor by an assault upon the person of the proprietor with a pair of scissors but without inflicting serious personal injury. Defendant was the active perpetrator of the assault which consisted of an attack from the rear, grabbing around the neck with the arm, choking, thrusting a pair of scissors against the back, and later striking several times. After being released the victim secured a revolver from a place of hiding and cocked it, and went toward the defendant who then, according to the victim, rushed at him with the scissors as if to stab him. The victim then shot the defendant, inflicting a minor wound.
We have often said: A sentence within the limits prescribed by statute will not be disturbed in the absence of an abuse of discretion. State v. Jurgens, ante p. 557, 192 N.W.2d 741. We cannot say the record establishes an abuse of discretion.
AFFIRMED.