*1 670
part plea bargain, the record reveals that she will prosecuted upon any not be the other checks any in the or in total, volved offenses $600= the check nection with transactions. in
The record reveals defendant was squad $10; the vice and forfeited arrest bond of an for disposition shown; 1967, assault in no arrest for destruc- disposition property shown; no 1968, tion in an arrest disorderly for in fine of 1968, costs; conduct an $25 larceny petit costs; arrest for fine of $10 petit larceny for second offense in 1969, arrest jail; possession days an arrest for minor costs; fine of and an arrest 1970 for $25 larceny, disposition entry, unlawful shown. present The circumstances of offense reveal papers, stealing lady’s use of false of a background purse, and other facts which district making took into consideration court determina- probation. was entitled to of whether tion scope is limited to- the review determina- court tion of whether the trial abused its discretion in imposing Martin, the sentence did. State v. 573; 2d State v. Walker, N. W. Neb. apparent 2d 745. N. W. trial court’s subject fit determination imposition probation, and the of the minimum inde- sentence, terminate discretion. the district court is correct and is Nebraska, appellee, State 2d 563 W. January 14, 1972. No. 38058.
Filed *2 Reddish, for Albert T. Meyer, Attorney A. H. General,
Clarence and Chaun- appellee. cey C. Sheldon, Spencer, C. Heard before White, Boslaugh, Smith, and JJ. Newton, J.
Smith, Black A found Bear had uttered a forged check in violation of section 28-60-1,R. R. S. 1943. appeal insufficiency he asserts On of evidence, error in instruction, and excessiveness of sentence. check, exhibit another check, exhibit were Monday, Foster On Yellow Elk. October Marguerite Crouse, a checkout cashier at the Food cashed Alliance, exhibit day 2. Center next presented Pauley, exhibit 1 to Indian male Cora there. cashier led a checkout She the back operator Essay, Essay of the Food J. John re- check which he retained, to cash fused and he ac- previous the Indian transaction cused departure Essay reported the Indian, After matter police police department, and officers subse- quently Black Bear. identify cashier checkout offender.
Roger salesman, had witnessed Roebuck, a bread Monday. Black identified transaction on Black Bear had been had been Bear, wearing intoxicated. the name exhibit “Viet Nam” with 3, a right Roe- Bonnet” on front. lettered during period Black on buck two other occasions this saw opinion jackets jacket. In Roebuck’s Bear clad in type seen one uncommon but exactly like exhibit 3. Black Bear testified as follows: prin- Tuesday. confronted him jacket.
cipally by intoxicated had been eyes, staggering bloodshot he had been to excess. With weaving. departed, Essay Bear trailed When Black then returned to store tele- block, him half a police. phoned the receiving Essay’s report, to minutes
Ten Byron patrol Lyle Fowler on Grant and L. and two other In- observed *3 group a blocks southeast of the Food dians a few one Black Bear was who was sober. Center. purchase groceries to He said intended at Food walking away in that direction. Center, tall, man 6 described to' feet army-type jacket clad in toxicated, and with the Nang” Bonnet, Viet Nam, Da let- words After an interval of 15 tered it. minutes officers sitting calmly He Black Bear. win- process a hotel that the front of was in the at dow well arresting officers The were demolition. convinced of sobriety. only jacket He exhibit 3, his type that either officer had seen in Alliance. inches feet or 8 tall, as fol- the location of the had known Food lows: either check to not seen had arrest. On Tuesday, 6, he been October north of the hotel, being located Food Center direction. No tes- timony implied that someone had borrowed his either many
There conflicts in among by witnesses, not but witnesses an indi- report Essay’s vidual witness. conflicts to related purchases police, of merchandise the offender description day, description each .and physical appearance of Black face. Biear’s ' Evidence guilty is sufficient to sustain a verdict of in a prosecution only jury when the properly guilt beyond find Leary, a reasonable doubt. State v. (1970). 185 Neb. Sufficiency N. 2dW. against Black Bear is a close issue. We against it resolve him.
The definition of “utter” in instruction No. 13 language tracked Crawford State, Neb. 231, (1957). Although 1W. 2d instruction No. 13 did knowledge refer such, instruction No. 8 part: the statement of issues read in “That at that time falsely knew said check to be made and counterfeited.”
Jury
collectively.
instructions must be considered
If
they correctly
as a whole
state the
law,
error occurs,
although
may
incomplete.
one alone
State v. Davis,
(1971).
third one occurred 14 age earlier. twenty of had a record misdemeanor convictions and prior felony convictions. His fourth four approximately years viction had occurred earlier. grant charge proper court to is for the and sentence plead guilty
concessions to defendants who when public in the effective administration interest of the justice Re served. A.B.A. Standards would be 1968). p. (App. § lating Guilty, Dr., 1.8, to Pleas appears claim on a of discretion Unless not disturb a sentence within excessiveness, we will statutory 521, 192 N. Morosin, ante p. limits. State v. reports presentence have reviewed W. 2d 165. We latter’s Elk Black Bear. The on Yellow of the trial court. discretion within the fell judgment is. dissenting. my respectfully dissent. In as the utterer I identifying in- wholly insufficient establish such iden- is strument beyond de- tity identification doubt. This reasonable Essay. upon testimony completely pends of John J. identify the defendant as cashier could attempted pass the check. who very a Vietnam weaving eyes were He was His bloodshot. toxicated. staggering. who arrested defendant the incident to 15 minutes within 5 was sober. question present mere credi- does case This bility for the decide. It is so the witnesses can, contradictory inherently the contradiction speculation. especially We refer resolved to, sobriety utterer and the speculation Where arrested. who was defendant not reasonable must be resorted to there inference beyond a reasonable doubt. joins in this dissent. J.,