State v. Tyndall, 37889

Decision Date28 May 1971
Docket NumberNo. 37889,37889
Citation187 N.W.2d 298,187 Neb. 48
PartiesSTATE of Nebraska, Appellee, v. Dennis TYNDALL, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. The habitual criminal act, section 29--2221, R.S.Supp., 1969, does not create a new and separate criminal offense for which a person may be separately sentenced but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment than ordinarily would be considered.

2. The Nebraska Legislature having withdrawn its offer of retrocession, 18 U.S.C.A., section 1162, is still applicable in Nebraska.

William G. Line, Kerrigan, Line & Martin, Fremont, for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, McCOWN, SMITH, NEWTON, and CLINTON, JJ.

SPENCER, Justice.

Defendant Dennis Tyndall was convicted under an information charging kidnapping, rape, and with being an habitual criminal. He was sentenced to life imprisonment on the kidnapping count, to a term of 20 years for rape, and to an additional term of 10 years as an habitual criminal. The sentences are to be served consecutively. We affirm the convictions but modify the life imprisonment sentence on Count I (kidnapping), and vacate the sentence for a term of 10 years on Count III (habitual criminal charge).

Defendant, who was a member of the Omaha Indian Tribe, was one of seven Indians involved in the kidnapping and rape incident described in State v. Goham, 187 Neb. 35, 187 N.W.2d 305. He was tried in October 1970, 7 months after the Goham trial. Reference is made to that case for a recitation of the pertinent facts. As described therein, the complaining witness was forcibly dragged from her car, forced into a car occupied by seven Indians, and taken 2 miles to Big Elk Park where she was forcibly raped by them. The complaining witness identified the defendant as one of the individuals who forced her from her car and as the first one to rape her.

Defendant lists four assignments of error. They are: 'The court erred: 1. In failing to vacate the conviction for kidnapping as the alleged kidnapping was incidental to the charge of rape. 2. In imposing a sentence of life imprisonment for kidnapping as the statute in effect at the time of trial provided for a maximum sentence of 50 years for kidnapping. 3. In sentencing defendant to a separate consecutive term of ten years imprisonment for being an habitual criminal. 4. In failing to dismiss all proceedings against defendant for the reason that the court had lost jurisdiction by virtue of retrocession of criminal jurisdiction to the United States.'

We adequately discussed defendant's first and second assignments of error in State v. Goham, 187 Neb. 35, 187 N.W.2d 305. What we said there is fully applicable and controlling herein.

Defendant's third assignment of error must be sustained. The habitual criminal act, section 29--2221, R.S.Supp., 1969, does not create a new and separate criminal offense for which a person...

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16 cases
  • Tyndall v. Gunter
    • United States
    • U.S. District Court — District of Nebraska
    • 30 Abril 1987
    ... ... 681 F. Supp. 643          Meanwhile, in 1968, the Congress had authorized the United States to accept a retrocession by any state of "all or any measure of the criminal or civil jurisdiction ... acquired by such State pursuant to the provisions of section 1162 of Title 18 ... " ... ...
  • State v. Harig
    • United States
    • Nebraska Supreme Court
    • 6 Junio 1974
    ...of criminal conduct aggravates the guilt and justifies greater punishment than ordinarily would be considered. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971). Under this act, the inaccurate allegation of the date or time of a prior felony would have no effect with respect to the suffi......
  • State v. Bartlett, 39989
    • United States
    • Nebraska Supreme Court
    • 9 Octubre 1975
    ...in this opinion. See, State v. Martain, 190 Neb. 212, 206 N.W.2d 856; State v. Graham, 192 Neb. 196, 219 N.W.2d 723; State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298. It may be admitted that a sentence of 20 to 30 years is severe. We do not conclude, however, that it is excessive. The defendan......
  • State v. Brewer
    • United States
    • Nebraska Supreme Court
    • 9 Noviembre 1973
    ...as a habitual criminal does not constitute a separate offense. Only one sentence may be imposed. State v. Huffman, Supra; State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298. In this case the sentence first imposed was a valid one for the crime of which the defendant was The trial court under the......
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