State v. Kluge

241 N.W.2d 354, 196 Neb. 41, 1976 Neb. LEXIS 738

• Court: Nebraska Supreme Court
• Decided: April 28, 1976
• Docket: No. 40361
• Status: Published

Opinion

Newton, J.

The defendant entered a plea of nolo contendere to a charge of entering a dwelling house in the nighttime and attempting to kill, disfigure, or maim a young girl. He received the minimum sentence of 3 years in the Nebraska Penal and Correctional Complex and has appealed on the grounds that the sentence is excessive and that he should have been placed on probation.

The defendant became intoxicated and late at night broke into the house of a stranger by forcing entry through a basement window, picked up a metal tennis racket, entered the bedroom of a young girl, and proceeded to viciously beat her with the tennis racket. The girl’s screams aroused her father who subdued the defendant.

The defendant appears to have borne a good reputation prior to the commission of this offense and had not previously been convicted of a felony. The present offense, however, is one of violence and represents the type of crime for which probation is rarely granted. Under the circumstances, we cannot conclude that there was an abuse of discretion on the part of the trial judge and the judgment of the District Court must be affirmed. See State v. Swails, 195 Neb. 406, 238 N. W. 2d 246.

Affirmed.