State v. Trout

Full title: STATE OF NEBRASKA, APPELLEE, v. GORDON L. TROUT, APPELLANT

Court: Supreme Court of Nebraska

Date published: Feb 19, 1971

183 N.W.2d 923 (Neb. 1971)

183 N.W.2d 923

Opinion

No. 37724.

Filed February 19, 1971.

Criminal Law: Sentences: Appeal and Error. Where a sentence has been imposed within statutory limits, it will not be disturbed in the absence of an abuse of discretion.

Appeal from the district court for Lancaster County: ELMER M. SCHEELE, Judge. Affirmed.

Paul E. Galter, for appellant.

Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellee.

Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SMITH, J.

Defendant pleaded guilty to robbery and to shooting with intent to kill, wound, or maim. The court imposed concurrent sentences of 10 to 20 years. Defendant appeals. He complains that the sentences are excessive.

At the arraignment of defendant for sentencing, the court on its own motion without objection ordered incorporation of the presentence report into the record. The report sets out the following information: Defendant, age 20, stated: ". . . I needed money . . . . The first time I went in that place I got some matches and then later on I went in to get a package of cigarettes and the attendant was alone and it just struck me on the spur of the moment . . . to rob him. I had the gun in my coat pocket. . . . I told the attendant that I wanted the money and that I had the gun. He reached under the counter and came up with . . . a .38 revolver. The police say there was no gun there. I say there was so it just simmered down to this that I would rather shoot him than have him shoot me. I was aiming at his stomach specifically . . . ."

A summary of police reports stated: ". . . x-rays (of the victim, Hember) showed . . . a bullet lodged in the lining of his stomach. Doctors felt that the first bullet struck . . . Hember in the front of the abdomen, passed out his right side. The second went through the left forearm, into the abdomen and lodged in the stomach."

Where a sentence has been imposed within statutory limits, it will not be disturbed in the absence of an abuse of discretion. State v. Gamron, ante p. 249, 182 N.W.2d 425 (1970). There was no abuse in the present case.

The judgment is affirmed.

AFFIRMED.