People v. Smith

Full title: The People of the State of Colorado v. Edward George Smith

Court: Supreme Court of Colorado. En Banc

Date published: Apr 9, 1973

510 P.2d 315 (Colo. 1973)

510 P.2d 315

Opinion

No. C-244

Decided April 9, 1973.

Defendant was convicted in the county court of "driving under the influence," 1969 Perm. Supp., C.R.S. 1963, 13-5-30(1)(a). On appeal district court reversed defendant's conviction on ground that county court erred in not instructing jury on lesser included offense of driving while ability is impaired, 1969 Perm. Supp., C.R.S. 1963, 13-5-30(1)(b), and certiorari was granted.

Affirmed With Directions

1. DRIVING UNDER THE INFLUENCE — Failure to Instruct — Lesser Included Offense — Driving While Ability Impaired — Remand — New Trial Only. Although judgment of district court — reversing conviction of driving while under the influence of intoxicating liquor because of failure to instruct on lesser included offense of driving while ability was impaired — was correct, nevertheless, remand to county court to enter judgment finding defendant guilty of driving while ability is impaired or in alternative to grant new trial was erroneous; having reversed, district court could order only a new trial.

2. COURTS — Appellate — Direct — Verdicts of Guilt — Prohibited. Appellate courts cannot direct the entry of directed verdicts of guilt.

Certiorari to the District Court of Arapahoe County, Honorable Robert F. Kelley, Judge.

Robert R. Gallagher, Jr., District Attorney, John A. Burns, Deputy, Jerrie F. Eckelberger, Deputy, for petitioner.

W. E. Myrick, P.C., William E. Myrick, for respondent.

MR. JUSTICE DAY delivered the opinion of the Court.

This case is one of three consolidated for the purpose of examining 1969 Perm. Supp., C.R.S. 1963, 13-5-30. Defendant Smith was convicted in the Arapahoe county court of "driving under the influence," 1969 Perm. Supp., C.R.S. 1963, 13-5-30(1)(a).

On appeal the district court reversed the defendant's conviction on the ground that the county court erred in not instructing the jury on the lesser included offense of driving while ability is impaired, 1969 Perm. Supp., C.R.S. 1963, 13-5-30(1)(b).

[1,2] For the reasons more fully discussed in Thompson v. People, 181 Colo. 194, 510 P.2d 311, announced this date, we hold the judgment of the district court in reversing the conviction was correct. We note, however, that the remand to the county court to enter a judgment finding the defendant guilty of driving while ability is impaired or in the alternative to grant a new trial was erroneous. Appellate courts cannot direct the entry of directed verdicts of guilt. Having reversed the county court conviction, the district court could order only a new trial.

The judgment is affirmed with directions to remand the cause to the county court for a new trial.