State v. Middleton

194 N.W.2d 568 (1972)

187 Neb. 821

STATE of Nebraska, Appellee, v. Gordon MIDDLETON, Appellant.

No. 38180.

Supreme Court of Nebraska.

February 10, 1972.

*569 Joseph D. Martin, Grand Island, for appellant.

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

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

CLINTON, Justice.

The defendant was trial and convicted by a jury on charges of possession and sale of a narcotic drug, cocaine, under the pertinent provisions of sections 28-451 to 28-472.06, R.S.Supp., 1969. Said sections have since been repealed and now have been replaced by the Uniform Controlled Substances Act, sections 28-4,115 to 28-4,142, R.S.Supp., 1971. Defendant was sentenced to concurrent terms of 3 to 5 years on each count.

Three issues are raised on appeal: (1) Sufficiency of the evidence to sustain the *570 conviction; (2) refusal to give a requested instruction; and (3) excessiveness of the sentence.

We have carefully reviewed the record. The evidence is clearly sufficient to support the jury's verdict. The record presents only questions of credibility. These were for the jury to determine and resolve.

The issue of the refusal to give the requested instruction was not raised in the motion for new trial. The requested instruction did not pertain to an issue of proof of an element of the crime or defense, but only as to whether the testimony of a paid special investigator was to be weighed with more care than in the case of a wholly disinterested witness. The matter not having been mentioned in the motion for new trial cannot be considered by this court. State v. Tolle, Neb., 194 N.W.2d 567.

The sentence imposed is severe but we cannot say it is excessive or the trial court abused its discretion. Sentence provided by the pertinent statute is "not less than two years nor more than five years." Section 28-470, R.S.Supp., 1969. The defendant was sentenced on May 24, 1971. After his conviction and sentence the statute, as we have noted, was repealed and replaced. Under the new act the penalty for possession is 1 to 2 years. The penalty for distributing, which is the offense under the new statute corresponding to the crime of sale under the old, is 5 to 20 years. Section 28-4,125(2) and (3), R.S.Supp., 1971.

Affirmed.