State v. Martin

Nebraska Supreme Court

State v. Martin

178 N.W.2d 573, 185 Neb. 699, 1970 Neb. LEXIS 620

CourtNebraska Supreme Court

DecidedJune 26, 1970

Docket37526

StatusPublished

Cited by4 cases

This text of 178 N.W.2d 573 (State v. Martin) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Martin, 178 N.W.2d 573, 185 Neb. 699, 1970 Neb. LEXIS 620 (Neb. 1970).

Pincite

Opinion

Smith, J.

A jury found defendant guilty of burglary, and the court sentenced him to imprisonment for 8 to 10 years. Defendant appeals. He complains that the court failed to instruct the jury on testimony of an accomplice and that the sentence was excessive.

No jury instruction on testimony of an accomplice was requested. Failure of the court to caution the jury on evidence given by an accomplice, in the absence of special request, will not ordinarily constitute *700 reversible error. Cornell v. State, 138 Neb. 708, 294 N. W. 851 (1940), modified on other grounds, 139 Neb. 878, 299 N. W. 231 (1941). Refusal of a requested instruction on the subject distinguishes Jungclaus v. State, 170 Neb. 704, 104 N. W. 2d 327 (1960).

The maximum sentence for burglary is 10 years. § 28-532, R. R. S. 1943. A police officer eyewitness positively identified defendant as a participant in the burglary of the liquor store at 1514 North 24th Street. The adult probation officer reported defendant’s age to be 30. Defendant had been sentenced in 1959 to imprisonment for 3 years for assault with intent to commit robbery. He was discharged after having served 25 months. Afterward he received 2 fines and a jail sentence of 15 days for 3 minor misdemeanors.

Where punishment of a statutory offense is left to the discretion of the court, a sentence imposed within the statutory limits will not be disturbed unless an abuse of discretion appears. State v. Burnside, ante p. 234, 175 N. W. 2d 1 (1970). No abuse appears here.

The judgment is affirmed.

Affirmed.

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Smith, J.

A jury found defendant guilty of burglary, and the court sentenced him to imprisonment for 8 to 10 years. Defendant appeals. He complains that the court failed to instruct the jury on testimony of an accomplice and that the sentence was excessive.

No jury instruction on testimony of an accomplice was requested. Failure of the court to caution the jury on evidence given by an accomplice, in the absence of special request, will not ordinarily constitute *700 reversible error. Cornell v. State, 138 Neb. 708, 294 N. W. 851 (1940), modified on other grounds, 139 Neb. 878, 299 N. W. 231 (1941). Refusal of a requested instruction on the subject distinguishes Jungclaus v. State, 170 Neb. 704, 104 N. W. 2d 327 (1960).

The maximum sentence for burglary is 10 years. § 28-532, R. R. S. 1943. A police officer eyewitness positively identified defendant as a participant in the burglary of the liquor store at 1514 North 24th Street. The adult probation officer reported defendant’s age to be 30. Defendant had been sentenced in 1959 to imprisonment for 3 years for assault with intent to commit robbery. He was discharged after having served 25 months. Afterward he received 2 fines and a jail sentence of 15 days for 3 minor misdemeanors.

Where punishment of a statutory offense is left to the discretion of the court, a sentence imposed within the statutory limits will not be disturbed unless an abuse of discretion appears. State v. Burnside, ante p. 234, 175 N. W. 2d 1 (1970). No abuse appears here.

The judgment is affirmed.

Affirmed.

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Bluebook (online)

178 N.W.2d 573, 185 Neb. 699, 1970 Neb. LEXIS 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martin-neb-1970.

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