Opinion
No. 41317.
Filed October 5, 1977.
Appeal from the District Court for Lincoln County: HUGH STUART, Judge. Affirmed.
Murphy, Pederson Piccolo and LeRoy Anderson, for appellant.
Paul L. Douglas, Attorney General, and Steven C. Smith, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
After a trial by a jury the defendant was convicted of robbery and sentenced to 5 to 15 years imprisonment. He has appealed and contends that the trial court erred in denying his request that he be placed on probation.
The robbery took place at a service station just west of North Platte, Nebraska, on June 24, 1976. The attendant on duty at the time was Del Perkins, then 72 years of age. The defendant entered the station at about 11:30 p.m., and stated that he wanted to buy a 12-pak of beer. When Perkins entered the walk-in cooler to get the beer, the defendant closed the door and attempted to hold it closed. Perkins pushed the door about halfway open and as he left the cooler, the defendant struck him on the side of the head with a hard instrument. The defendant continued to strike Perkins about the face and head until he had forced him to the floor. The defendant removed approximately $170 from the cash register and then left the station. After another customer arrived, Perkins was taken to a hospital. Nine stitches were required to close the lacerations above his left eye and on the back of his head.
The defendant was positively identified by Perkins and the State had the testimony of an accomplice. There was also other evidence which identified the defendant as the person who struck Perkins and took the money from the cash register.
The defendant is 21 years of age and has a 9th grade education. He was unmarried and unemployed at the time of the offense. The defendant has an arrest record dating from 1971. He was committed to the Youth Development Center in 1972 for breaking and entering. He was imprisoned in the Missouri State Penitentiary in 1974 for burglary and escaping jail. A charge of automobile theft in North Platte, Nebraska, was dismissed at that time because of the Missouri sentence.
The defendant's record shows that he is a violent person who has a great disrespect for authority. Although he now professes to have become a very religious person his conduct in the past cannot be ignored. The offense which he committed involved violence and injury to the victim. It would have been an abuse of discretion to grant probation to the defendant. The sentence imposed was not excessive in view of the circumstances of the case.
The judgment of the District Court is affirmed.
AFFIRMED.