Opinion
No. 41190.
Filed July 13, 1977.
Appeals from the District Court for Knox County: MERRITT C. WARREN, Judge. Affirmed.
John Stevens Berry of Friedman Berry, for appellants.
Paul L. Douglas, Attorney General, and Gary B. Schneider, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendants were charged jointly with assault with intent to inflict great bodily injury. Upon trial to the court the defendants were found guilty of assault and battery. They have appealed and contend the evidence was not sufficient to sustain the judgment and the sentences imposed were excessive and disproportionate.
The charge arose out of a fight in a bar in Niobrara, Nebraska, on December 28, 1975. On the evening of December 27, 1975, the defendant, Greg Golter, had been involved in a scuffle with Chad Wilson in a bar in Monowi, Nebraska. In that scuffle Greg's glasses had been broken. On the following day Greg, accompanied by Russell Bahr, John Howe, and the other two defendants, went to Niobrara, Nebraska, to obtain an apology from Wilson and payment for the glasses.
After arriving in Niobrara the defendants went to the Cornhusker Bar. Greg called Wilson and arranged for him to come to the bar. After arriving at the bar Wilson sat down in a booth with Greg and they had a conversation. The evidence is in sharp conflict as to what happened after that.
The State's evidence tended to show that while Wilson was seated in the booth talking to Greg, one of the other men approached Wilson from behind, pulled him from the booth, and began to beat him. The other defendants joined in the fight during which Wilson was beaten with fists, struck with a pool cue, and then kicked repeatedly after he had fallen to the floor. When the bartender, Hazella May, attempted to call the police, Greg held her arms and prevented her from doing so.
When the defendants left the bar Wilson was lying face down in a pool of blood. He had a fractured nose, a fractured jaw, and a fractured skull. He had a 5-inch laceration over the right temple, a 2-inch laceration behind the left ear, and numerous other bruises and lacerations. Wilson was hospitalized for 3 days after the fight.
The defendants' evidence was to the effect that the fight started when the defendant Alan Golter came to the booth where Wilson and Greg were sitting. According to their evidence, Wilson struck at Alan and then wrestled with Alan, attempting to force him to the floor. Bahr came to the aid of Alan, striking at Wilson with a pool cue but hitting Alan by mistake. The defendant William Golter pulled Alan away from Wilson, who then fell to the floor after he had been struck by Bahr. While the fight was in progress, Greg was near the bar trying to calm Mrs. May who was hysterical. John Howe was not involved.
The evidence presented a question of fact as to what happened and the extent to which each defendant participated in the beating, as either a principal or an aider and abettor. The record fully supports the finding of the trial court that each defendant was guilty of assault and battery.
Although Bahr was charged separately, his case was consolidated for trial with this case. Bahr did not testify at the trial and he has not appealed. Howe was a resident of Texas. A warrant was issued for his arrest but he was never found.
Bahr and Alan Golter were sentenced to 3 months imprisonment in the county jail. Greg Golter was sentenced to 45 days imprisonment in the county jail. William Golter was fined $250.
The three defendants are brothers. Alan is 29 years of age. Greg is 26 years of age. William is 24 years of age. Alan and William are farmers who farm with their father. Greg is a registered nurse employed at a hospital in Lincoln, Nebraska.
The defendants have no significant criminal record. Alan has had a number of traffic offenses and William has been found guilty of possession of less than 1 pound of marijuana.
The record shows that all the defendants participated in a vicious and brutal assault upon the victim Wilson. The trial court found that the fight started when Alan grabbed Wilson from the rear. Bahr then came to the aid of Alan and struck or attempted to strike Wilson with the pool cue. Bahr admitted at the sentencing hearing that he had struck Wilson in the nose with his fist and had kicked him after he was down. He also stated that Alan had kicked Wilson in the head a couple of times and had jumped up and down on his back. The evidence established that Bahr and Alan did most of the beating and deserved the greatest sentences.
Greg was the instigator. He arranged for Wilson to come to the bar so that Greg could obtain an apology and reparation for the event of the night before. While the fight was in progress he restrained Mrs. May so that she was unable to call the police until the beating was over. At the sentencing hearing, Greg admitted that he had hit Wilson. Thus, Greg was both an active participant in the beating as well as an aider and abettor. Since he did not directly participate in the violence to the extent that Bahr and Alan did, it is reasonable that he should receive a lesser sentence.
William's participation in the fight appears to have been the effort to pull Alan away from Wilson. Under those circumstances a sentence of only a fine was reasonable.
We find no merit in the defendants' contentions that the sentences were excessive and disproportionate.
The judgment of the District Court is affirmed.
AFFIRMED.