Fast v. State

261 N.W. 176, 128 Neb. 782, 1935 Neb. LEXIS 126

• Court: Nebraska Supreme Court
• Decided: April 19, 1935
• Docket: No. 29415
• Status: Published

Opinion

Day, J.

The defendant prosecutes this proceeding in error from a conviction in the district court of the unlawful possession of intoxicating liquor for the purpose of sale. It was charged that it was his third offense.

The defendant urges as error that the evidence is not sufficient to support the conviction under section 53-103, Comp. St. 1929. However, the information is sufficient under section 53-102, Comp. St. 1929, and the evidence amply supports the verdict thereunder. Knothe v. State, 115 Neb. 119; Verbeck v. State, 127 Neb. 503.

The sentence was eighteen months in the penitentiary. The two former convictions occurred ten years before the time of defendant’s present arrest. The only evidence of sale was conversation of defendant with arresting-officers. There was not an unequivocal admission, but it was sufficient to present a question of fact. However, the record does not reveal a necessity for a severe sentence. It seems that six months in the penitentiary is ample to meet the exigencies of this case, and the sentence is hereby reduced under section 29-2308, Comp. St. 1929, to six months in the penitentiary.

Affirmed as modified.