589 P.2d 948 | Colo. | 1979
Lead Opinion
delivered the opinion of the Court.
This case arose from an incident in which the defendant severely beat Haden Alldredge, an older man. Dowdell was charged in a two-count information with assault in the first degree in the course of and in furtherance of the attempted commission of robbery, section 18-3-202(1 )(d), C.R.S. 1973, and attempted robbery, section 18-2-101, C.R.S. 1973. At trial, after the People’s case was concluded, the judge found the People had failed to prove “serious bodily injury” beyond a reasonable doubt. The first count was dismissed, and the prosecution, with the consent of the court, elected to proceed on the lesser included offense of third-degree assault, section 18-3-204, C.R.S. 1973. The jury rendered a verdict of not guilty on the attempted robbery chárge and guilty on the assault charge.
The defendant thereafter filed a motion for judgment of acquittal, contending that third-degree assault was not a lesser included offense of first-degree felony assault. The motion was granted. The sole issue raised by the defendant in the trial court was whether third-degree assault is a lesser included offense of first-degree felony assault.
We do not reach this question because the defendant consented to proceeding on the charge of third-degree assault. After the court ruled that the prosecution had not established a prima facie case as to first-degree assault, the district attorney elected to proceed on the third-degree assault charge.
When the defendant agreed to proceed on third-degree assault, it became immaterial whether it was a lesser included offense. It was the only assault charge to be adjudicated or ruled upon. He had waived whatever right he may have had to contend that it was not a lesser included offense.
The judgment of acquittal is reversed, and the cause is remanded with directions to reinstate the verdict of guilty on the third-degree assault charge and sentence the defendant according to law.
MR. JUSTICE GROVES and MR. JUSTICE ERICKSON dissent.
MR. JUSTICE CARRIGAN does not participate.
Dissenting Opinion
dissenting:
I respectfully dissent. The prosecution, utilizing section 16-10-102, C.R.S. 1973, appealed to determine whether the district court erred as a matter of law in ruling that third-degree assault (section 18-3-204, C.R.S. 1973), is not a lesser included offense of first-degree assault (section 18-3-202, C.R.S. 1973).
The record does not support the majority opinion’s assertion that the defendant agreed to proceed on the third-degree assault charge. Moreover, the majority has provided a solution to the case which is not dealt with in the briefs which are before this court.
MR. JUSTICE GROVES joins me in this dissent.
