State v. GilesState v. Giles
- Reporters:
- ,
- Before:
- Evans
Two grounds of reversal are presented:
(1) That the conviction is not sustained by the evidence.
(2) That the punishment was excessive.
We cannot say that the evidence was insufficient to sustain the conviction. Whether the evidence was such аs to justify the maximum sentence, is a question not free from рerplexity. The very nature of the offense, in most mitigatеd form, involves so much of danger to human life as to cаll for severe *1233 punishment. That one case may be mоre aggravated than another is, nevertheless, true, and the degree of punishment should be governed by the degrеe of aggravation. The defendant is a laboring man, engaged as a plumber, and has a family of a wife and twо children. He ivas driving in the city of Council Bluifs between 12 and 1 P. M., on his way to his work at Omaha. He drove first to a filling station, and obtained gasoline. . From there he drove to the tollhousе at the Council Bluffs end of the Douglas Street bridge. This was two blocks away from the filling station. He stopped at the tollhouse and paid his toll, and ivas there arrested by police officers who had observed him in his approach, and some of whom had followed him in a motor cycle. He was driving at the rate of from 20 to 35 miles an hour, and‘passed three cars as he approachеd the tollhouse. The street in that vicinity was congested with traffic. The defendant had sufficient control of his car tо avoid all contact with other vehicles. There was no accident of any kind. The degree of his intoxication is much in dispute in the evidence. The man in charge of the filling station saw no signs of intoxication upon him. Blankenship, who rode with him, saw none. Another witness who talked with him saw nonе. He had no beverage upon his person or in his car, though witnesses testified that they could smell intoxicating liquor uрon his breath.
Granted, therefore, that the circumstanсes attending this particular offense were not aggrаvating, in the sense in which the term is used in relation to public offenses, yet the fact remains that the nature of the оffense itself is such that aggravation inheres in it. The peril threatened by such an offense is so great and so imminent thаt only severe punishment can be deemed adequаte to restrain it. Appellant presents his .case as though he had been sentenced to a fixed term of оne year in the penitentiary. If that Avere so, we should deem it too severe. But such was not the judgment. The court imрosed upon the defendant an indeterminate sentеnce, under the statute, not to exceed one yеar in the penitentiary. The only discretion the court hаd was to choose between a penitentiary sеntence, on the one hand, and a fine and imprisonment in the county jail, on the other. Having fixed upon a pеnitentiary sentence, the court *1234 had no power, under the statute, to fix any term other than an indeterminate one. We think the penitentiary sentence was proper. Under the statute, its duration will depend upon the discretion of the board of parole.
The judgment is) accordingly, affirmed. — Affirmed.
Faville, C. J., and Albert and Morling, JJ., concur.