State v. Fincher

196 N.W.2d 909 (1972) 188 Neb. 376

STATE of Nebraska, Appellee,
v.
Hubert W. FINCHER, Appellant.

No. 38122.

Supreme Court of Nebraska.

April 27, 1972.

Hubert W. Fincher, pro se.

Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and BOSLAUGH, McCOWN, and CLINTON, JJ., and COLWELL, District Judge.

CLINTON, Justice.

The defendant was convicted by a jury of the crime of assault with intent to commit great bodily injury committed on September 29, 1970. He was sentenced to a term of 15 to 20 years. He appeals pro se and the sole assignment of error is that he received a sentence in excess of the maximum provided by statute. He points to section 28-413, R.R.S.1943. He overlooks that in 1969 the legislature amended that statute to provide for a penalty of "not less than one year nor more than twenty years." S. 28-413, R.S.Supp., 1969. The assignment of error is not well taken.

If the defendant had been represented by counsel on this appeal a specific assignment of excessiveness of sentence would no doubt have been made, and since this appears to be the defendant's real complaint we treat his assignment of error as raising the question of excessiveness of sentence and have accordingly carefully reviewed the record.

The evidence of the defendant's guilt is largely circumstantial but quite conclusive. The crime was witnessed but the witness was not able to see the face of the defendant, only the wrist and the hand, the weapon, and the striking. The crime itself was a brutal one involving an apparently unprovoked assault with a hammer upon a man 80 years of age. The victim died. The defendant is of the age of 60 years. He took the stand in his own behalf. His explanation of the blood on his clothing is not convincing. He admits three prior felony convictions. The court did not abuse its discretion in imposing a sentence of 15 to 20 years.

Affirmed.