delivered the opinion
Thе defendant was charged with the burglary of a drug store. Trial by jury resulted in a verdict of guilty. The defendant seeks reversаl, alleging that: (1) the trial court erred in refusing to instruct the jury on criminal trespass as a lesser included offense; (2) the court erred in denying defendant’s motion for judgment of acquittal; and (3) the court erred in admitting into evidence, оver defendant’s objection, a 1956 robbery conviction for impeachment purposes.
The casе was set for oral argument in this court on
March 10, 1971. On March 3, 1971, counsel for the parties filed with the court, a statement requesting a decision upon the briefs of the respective parties without oral argument pursuant to C.A.R. 34(f). The statement was in accord with the Standards of Criminal Justice, as they relate to the obligations of counsel for the defendant on appeal, set forth in
McClendon v. People,
In the statement, the parties also agreed that as to two of the assignments of error, opinions announced by this court subsequent to the time that this case became at issue “disposed” of defendant’s contentions. We do not rely solely upon the parties’ agrеement in making our decision. It is our responsibility to' consider each issue raised by the defendant in his motion for new trial and preserved in his briefs on appeal and make our own determination as to whether subsequent dеcisions (or any decisions) have, in fact, disposed of the issues raised under the circumstances of this cаse.
Defendant’s assignment of error (1) is based upon the refusal of the trial court to instruct the jury that criminal tresрass, a misdemeanor, is a lesser included offense of the crime of burglary. Counsel for the parties, in refеrence to this assignment of error stated:
“That the first assignment of error of the defendant has been disposed of by decision of the Supreme Court since the filing of the briefs herein in Howard v. People,173 Colo. 209 ,477 P.2d 378 .
In Howard v. People, supra, the case which is the basis of their statement, this court announced a rule of law which is the antithesis of the defendant’s contention.
A view of the salient facts in the instant case shows the similarity between this case and the Howard case, supra.
The Rocky Mountain Pharmacy had a glass panel broken in one of its front doors as the result of a windstorm. An alarm company placed a board over the opening and then installed wires around the board so that if the board were broken, a silent аlarm would sound at police headquarters.
On December 22, 1967, at approximately 2:35 a.m., two policе officers responded to a silent alarm at the pharmacy. Upon their arrival, they discovered the board which was used to cover the broken door panel lying inside the pharmacy. The officers entеred the pharmacy and upon hearing voices, proceeded to the rear of the store. Onе of the officers turned his flashlight into a small aisle and discovered the defendant in a crouching position. Thе defendant had a white handkerchief covering his face, stockings covering his hands and a knife in his pocket. One of the officers testified that upon his arrest, the defendant asked how the officers knew he was in the store. The officers informed him of the silent alarm.
The defendant’s testimony in defense of the charge was in substanсe that he had been drinking, observed the board off the window, blacked out, and the next thing he remembers he was being arrested. One of the officers testified that he observed
In Howard, under strikingly similar circumstances, we held that the crime of criminal trespass contains essential elements which are not elements of the offense of burglary and consequently, criminal trespass is not a lesser included offense of that crime. C.R.S. 1963, 40-3-8.
II.
We agree with the defendant’s premise, in assignment of error (2), that spеcific intent to commit a specific felony is an essential element of the offense of burglary.
Gomez v. People,
Assignment of error (2), although not covered by the statement, could also have been disрosed of in the same fashion. A case squarely on the issue of the re
quired proof of intent to steal wаs decided by this court on August 4, 1970.
Garcia v. People,
“... The general rule which we find to be supported by reason and logic is that where оne breaks and enters into the property of another in the night time, an inference may be drawn that he did sо with the intent to commit larceny.”
Under the facts set out in part I and the law as enunciated in
Garcia, it is clear that the jury was
justified in finding the defendant guilty as charged.
Accord: Goddard v. People,
III.
In the statement tendered by the
parties, it is
provided, “That thе third assignment of error of the defendant has been disposed of by decision of the Supreme Court since thе filing of the briefs herein in
Lee v. People,
Assignment (3) asserts the trial court erred in not sustaining the defendant’s objection to an inquiry of the dеfendant as to a 12-year-old felony conviction on cross-examination for the purpose of impeachment. Defendant argued for a construction of C.R.S.
1963,
154-1-1, relating to
witnesses,
which would bar evidence of a previous fеlony conviction where the witness testifying was convicted five years prior to the time of his testimony in a criminal action (although the statute limits the proscription to civil actions). If this interpretation is denied, defendant argues that the rule denies him the equal protection of the law. These were the arguments which were thoroughly discussed in
Lee v. People,
The judgment of the trial court is affirmed.