Opinion
No. 39844.
Filed May 22, 1975.
Appeal from the District Court for Dodge County: ROBERT L. FLORY, Judge. Affirmed.
William G. Line of Kerrigan, Line, Martin Hanson, for appellant.
Paul L. Douglas, Attorney General, and Marilyn B. Hutchinson, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
The defendant was originally charged with felonious assault and robbery. Upon arraignment he pleaded not guilty by reason of mental derangement.
A mental examination was made which disclosed no evidence of an emotional or mental disorder. The defendant then pleaded guilty to the assault count and the robbery count was dismissed.
The county attorney recommended the defendant be granted probation. This recommendation was made as a part of the plea bargain and the defendant understood the recommendation was not binding on the court. The trial court sentenced the defendant to imprisonment for 2 years. The defendant has appealed and contends he should have been placed on probation.
The defendant is a construction worker, 40 years of age. He is married and has four children. He has no criminal record other than traffic offenses, and appears to have been a satisfactory employee.
On the day the assault occurred the defendant was not working because of inclement weather. He spent much of the day drinking. Late in the afternoon he drove to a park on the edge of Fremont, Nebraska, with Harold McKee, another man, and two women who had been in a bar with him. After arriving at the park, the defendant struck McKee about the head and face with a claw hammer and more than $100 was taken from his billfold. The defendant, the other man, and the women then left the park. Statements in the police report indicate the defendant may have intended to kill McKee and thought he was dead when they left the park.
The incident was reported to the police by the women. McKee was found badly injured but still alive. The defendant claims he has no recollection of the assault.
The sentence imposed was the minimum provided by statute. 28-409, R.R.S. 1943. Probation might have been appropriate except for the seriousness of the offense and the violence with which it was committed. Under the circumstances of this case, the sentence imposed was not excessive.
The judgment of the District Court is affirmed.
AFFIRMED.