State v. Tyndall, 37889
Decision Date | 28 May 1971 |
Docket Number | No. 37889,37889 |
Citation | 187 N.W.2d 298,187 Neb. 48 |
Parties | STATE of Nebraska, Appellee, v. Dennis TYNDALL, Appellant. |
Court | Nebraska 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 The Nebraska Legislature having withdrawn its offer of retrocession, 18 U.S.C.A., section 1162, is still applicable in Nebraska.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.
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:
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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