delivered the opinion of the Court.
The People appeal 1 the trial court’s dismissal of the attempted second-degree kidnapping charge after the prosecution had concluded its case, and the decision of the trial court to instruct the jury on misdemeanor menacing, a lesser included offense оf felony menacing. We affirm in part and disapprove in part.
*427 Shortly after midnight on April 30, 1978, the defendant stopped a passing сar and braced his shotgun on the hood, pointing it at the people inside. He told them, “Don’t move or I’ll blow you away.” He then went to the open window on the driver’s side, put the shotgun against the driver’s head, and told him to slide over. The driver moved to the front passenger seat, and his wife, who had been in the passenger seat, fled. Two other people were in the back seat.
The defendant dropped his shotgun to the level of the driver’s stomach as he got into the car. The car was running, but the handbrake wаs on. The defendant tried to put the car in gear, but it stalled. When he was not successful in re-starting the car, the defendant threw the shоtgun away, stating that it was not loaded anyway. The police arrived shortly thereafter.
At trial, the defendant testified that he remеmbered nothing of the event. The trial judge instructed the jury on felony menacing and the lesser included offense, misdemeanor menacing. The jury acquitted the defendant of felony menacing, but found him guilty of misdemeanor menacing. The trial judge dismissed an attempted sеcond-degree kidnapping charge at mid-trial.
I.
The defendant was charged with attempted second-degree kidnapрing under section 18-3-302, C.R.S. 1973 (1978 Repl. Vol. 8), and section 18-2-101, C.R.S. 1973 (1978 Repl. Vol. 8). 2 A person is guilty of attempted second-degree kidnapping if he knowingly engaged in conduct which is strongly corroborative of the firmness of his purpose to knowingly seize or carry another person from one place to another without his consent and without lawful justification. At the close of the prosecution’s cаse-in-chief, the trial court granted the defendant’s motion for a directed judgment of acquittal on the attempted kidnapрing charge because the evidence viewed in the light most favorable to the prosecution was insufficient.
The district attorney urges that the evidence tending to show that the defendant had taken a substantial step toward commission of second-degree kidnapping was sufficient, as a matter of law, to withstand a motion for directed judgment of acquittal. The test for sufficienсy is stated in
People
v.
Downer,
*428 “Only when the evidence is such that the jury must necessarily have a reasonable doubt should the judge direct a verdict in favоr of the defendant. The trial court must give the prosecution the benefit of every reasonable inference which might fairly bе drawn from the evidence.”
See also People
v.
Roberts,
Questions of the sufficiency of the prosecution’s evidence “by [their] very nature must be reviewed оn an
ad hoc
basis, and it is the exceptional case where such review will involve questions of ‘sufficiency’ generally applicаble to future cases.”
People
v.
Kirkland, supra,
Therefore, we affirm the trial court’s judgment, dismissing the attempted second-dеgree kidnapping charge.
II.
The People contend that the court’s decision to give the instruction on misdemeanor menacing was error because the defendant’s use of a shotgun, a deadly weapon, intentionally placed another in fear of imminent bodily injury. 3 The trial court found that the shotgun was jammed against the head of one of the victims, and that the evidencе was adequate to show in this instance menacing by use of a deadly weapon. The court refused to accept thе People’s argument that a shotgun is a deadly weapon as a matter of law and instructed the jury on felony menacing and thе lesser included offense, misdemeanor menacing. The jury acquitted the defendant of felony menacing and convicted him оf misdemeanor menacing.
Our decision in
People
v.
McPherson,
The elements of misdemeanor menacing and felony menacing are identical but for the added requirement of thе use of a deadly weapon. The submission to the jury of an included crime is justified only if there is evidence supporting the jury finding the accused innocent of the higher crime and guilty of the lesser included crime. Section 18-1-408(6), C.R.S. 1973 (now in 1978 Repl. Vol. 8);
People
v.
Shannon,
We disapprove the trial court’s ruling submitting misdemeanor menacing to the jury. However, because the defendant cannot be placed in jeоpardy a second time, People v. Kirkland, supra, we affirm the conviction for the lesser included offense, misdemeanor menacing. We also affirm the trial court’s judgment dismissing the attempted second-degree kidnapping charge.
Notes
Section 16-12-102, C.R.S. 1973 (now in 1978 Repl. Vol. 8), allows the People to appeal a decision in a criminal case in which the defendant was acquitted when a trial court commits a material error of law prejudicial to the State and an appellate decision will have precedential value.
People
v.
Kirkland,
Section 18-3-302(1) provides:
“Any person who knowingly, forcibly, or otherwise seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.” Section 18-2-101(1) provides:
“A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct cоnstituting a substantial step toward the commission of the offense. A substantial step is any conduct . . . which is strongly corroborative of thе firmness of the actor’s purpose to complete the commission of the offense.”
Section 18-3-206, C.R.S. 1973 (now in 1978 Repl. Vol. 8) provides:
“A person commits the crime of menacing if, by any threat or physical action, he knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, if committed by the use of a deadly weapon, it is a class 5 felony.”