91 Neb. 605 | Neb. | 1912
Lead Opinion
An information was filed in the district court accusing plaintiff in error of the crime of robbery, the charge being that he robbed one Earl W. Spencer of the sum of |17.60 by an assault and putting him in fear of bodily violence. A jury trial was had, which resulted in a verdict finding plaintiff in error guilty, and he was sentenced to the indeterminate term of from three years to fifteen years in the penitentiary. He brings the cause to this court for review by proceedings in error.
There are three principal errors assigned: First, that the evidence is insufficient to sustain the verdict; second, that the court erred in instructions; and, third, that the law providing for the indeterminate sentence is unconstitutional and void, and, if sentenced at all, the judgment should have been for a fixed and determined length of time.
As to the first contention, there is practically no conflict in the evidence. The alleged facts as to the robbery and the presence of plaintiff in error, whom we will hereafter refer to as defendant, at the scene of the commission of the offense is not denied. The crime was committed after midnight, or early morning, of December 2, 1911. The person robbed was the toll-gate keeper at the west end of the bridge for general travel across the Missouri river in the city of Omaha. From the undisputed evidence it appears that defendant boarded a street car on the Iowa side and was transported to Omaha, arriving at the west end of the bridge about the hour of 1 o’clock and 30 minutes on the morning of the robbery, which occurred at about 20 minutes after 2. When the car reached Eleventh street, which is the second street west
It was upon this theory that the instructions of the court were given, and it is not deemed necessary to extend this opinion by copying them here. We have examined them, and are unable to detect any prejudicial error in that regard.
The question of the constitutionality of the indeterminate sentence law was fully passed upon in Wallace v. State, ante, p. 158; the opinion having been filed since the preparation of defendant’s brief. We have re-examined that opinion, and are satisfied with it. We have no doubt of the constitutionality of the law. The question was before the supreme court of the United States in Ughbanks v. Armstrong, 208 U. S. 481, and the decisions of the state courts in the cases cited in Wallace v. State, supra, were approved. The only difference between the holdings of those decisions and the views of the writer hereof would be as to the construction to be given to the language of the act. It is provided: “The court imposing such sentence shall not fix the limit or duration of the sentence, but the term of imprisonment of any person so convicted shall not exceed the maximum nor be less
It follows that the judgment of the district court must be affirmed, which is done.
Affirmed.
Concurrence Opinion
concurring in part.
I cannot agree with the criticism made of the decisions of other courts. Under the statutory provisions, in my