State v. Finney

¶1(dissenting): I concur in all that is said in the prevailing opinion except the portion of the order that remands the case to the district court for resentence. In my opinion the court in reaching that result attaches too much weight to the colloquy engaged in by court and counsel during the argument. I do not deem it wise to thus set up a rule by which judges will hesitate to comment on arguments or situations that are being presented. The statements of the trial court were nothing more than the running comment that any judge might make when a close matter was being forcibly presented. There is not a sufficient showing to justify the assumption that the court was finally pursuaded in the judgment he rendered by the case and statute discussed. We cannot weigh the conclusions of trial courts with the same care that we weigh the testimony of an unwilling witness. I am constrained to hold that were it not for the conflicting statements of counsel — all of them honorable men — this feature of the case would have received but scant consideration. The finding of the trial court that there was -no promise to which he was a party should be conclusive in this matter. The defendant will not be entitled to his release when he has served the minimum sentence. He will only be entitled to appear before the parole board. (See R. S. 62-1525.) If that board sees fit *589it may permit him to be paroled, providing the governor approves the action of the board. (See R. S. 62-1529.) On the other hand, if the board does not see fit to recommend the parole the defendant may be held in imprisonment until the maximum is served, which in this case would be for life under either sentence. The net result is that the sentence pronounced by the court does not operate to limit in any degree the term which may be served. One step further, after the defendant has served some years, sentence may be commuted by the governor by reducing the minimum (see R. S. 62-2220). In case this is done the defendant will be entitled to appear before the parole board when he has served the new minimum set by the commutation. It will be seen that the same authority that can hold him in for life can cause his release in a shorter time. This is so, irrespective of the sentence pronounced by the trial court. This is all a part of the present penal system in this state. It has been criticized at times, but the theory of it is that the state penal institutions are intended as places where the people confined thus may be rehabilitated and made into useful citizens. The theorjr is that the parole board and governor only extend clemency to such persons as appear ready to become law-abiding members of their communities. At any rate, I am firmly of the opinion that the order of this court remanding the cause to the trial court is a useless gesture.