Opinion
No. 37933.
Filed January 7, 1972.
1. Criminal Law: Robbery. An essential element of the crime of robbery is that the theft be accomplished by the use of force, violence, or intimidation. 2. ___: ___. Force relied upon must be sufficient to effect a transfer of the property from the victim to the robber and if it is sufficient to overcome resistance, the degree is immaterial. 3. Criminal Law: Sentences: Appeal and Error. Where the punishment of an offense created by statute is left to the discretion of the trial court within prescribed limits, a sentence imposed within those limits will not be disturbed on appeal unless there appears to be an abuse of discretion.
Appeal from the district court for Douglas County: LAWRENCE C. KRELL, Judge. Affirmed.
Frank B. Morrison, Bennett G. Hornstein, and Paul Blunt, for appellant.
Clarence A. H. Meyer, Attorney General, and Betsy G. Berger, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is an appeal from a conviction for robbery. The evidence reveals that on May 28, 1970, a cleaning establishment of Max I. Walker, Inc., was entered at about 12:20 p.m. by a person identified by two witnesses as the defendant. Defendant first entered and asked for clothes. There were none in the name given. He left and returned a few minutes later. On this occasion he entered the rear room and created a disturbance with the lady who did the pressing. The mailcarrier entered the shop and asked defendant to leave after threatening to call the police. Defendant went out with the mailcarrier but returned and the mailcarrier crossed the street. He saw defendant leave carrying something which he dropped and picked up, and then he ran down the street. In the meantime, the women in the shop were screaming. When defendant returned the third time, the lady acting as the counterclerk had waited on a customer and left the cashdrawer open. Defendant put in his hand to remove the money and she shut the drawer on his hand. He pushed her away with sufficient force that she fell and lacerated her knees. He then jerked the cashtray out on the floor, removed the money, and fled. He was apprehended about 5 minutes later approximately 2 blocks from the shop. When he saw the police officer, he attempted to flee, then surrendered. He then had a scraped area on the back of his left hand and was possessed of $111.37, a $17.16 check. and a claim check on the Walker cleaning establishment in the name of another individual. The manager testified $169.26 was missing.
We find the record sustains the conviction and that the judgment of the district court should be affirmed.
Defendant asserts the evidence is insufficient in that the use of force was not proved. An essential element of the crime of robbery is that the theft be accomplished by the use of force, violence, or intimidation. See 28-414, R.R.S. 1943. Force relied upon must be sufficient to effect a transfer of the property from the victim to the robber and if it is sufficient to overcome resistance, the degree is immaterial. See, Williams v. State, 51 Neb. 711, 71 N.W. 729; Cooper v. State, 9 Md. App. 478, 265 A.2d 569; People v. Williams, 23 Ill.2d 295, 178 N.E.2d 372.
Defendant further contends that the sentence of not less than 24 years 6 months, nor more than 35 years, is excessive. The sentence is a severe one and it would have been helpful had the court, by means of questioning the defendant at the time sentence was pronounced or by other means, made defendant's background and past conduct a part of the record. The present record contains only an indication that defendant had been at least twice previously convicted of felonies. On this record we are not in position to judge whether or not the trial court abused its discretion. Where the punishment of an offense created by statute is left to the discretion of the trial court within prescribed limits, a sentence imposed within those limits will not be disturbed on appeal unless there appears to be an abuse of discretion. See State v. Agostine, 184 Neb. 158, 165 N.W.2d 353.
Another assignment of error is that contradictions in the evidence adduced required a directed verdict of acquittal. It is well established that matters of credibility are for the jury. Defendant also insists he was deprived of a chance to prepare his defense and that the record of the preliminary hearing was suppressed. These contentions are not supported by the record and are without merit.
No error appearing, the judgment of the district court is affirmed.
AFFIRMED.