This rule is well established in the jurisprudence. See Hankins v State, 206 Ark. 881; 178 S.W.2d 56 (1944); People v Isby, 30 Cal.2d 879; 186 P.2d 405 (1947); Smith v People, 120 Colo. 39; 206 P.2d 826 (1949); State v Dortch, 139 Conn. 317; 93 A.2d 490 (1952); State ex rel Goepel v Kelly, 68 So.2d 351 (Fla, 1953); State v Snowden, 79 Idaho 266; 313 P.2d 706 (1957); People v Lion, 10 Ill.2d 208; 139 N.E.2d 757 (1957); State v Christie, 243 Iowa 1199; 53 N.W.2d 887, 54 N.W.2d 927 (1952); Long v Commonwealth, 262 S.W.2d 809 (Ky, 1953); State v Youngblood, 235 La. 1087; 106 So.2d 689 (1958); State v Palen, 119 Mont. 600; 178 P.2d 862 (1947); State v Bourdlais, 70 Nev. 233; 265 P.2d 761 (1954); State v King, 37 N.J. 285; 181 A.2d 158 (1962); People v Jackson, 14 N.Y.2d 5; 247 N.Y.S.2d 481; 196 N.E.2d 887 (1964); State v Absher, 226 N.C. 656; 40 S.E.2d 26 (1946); State v Braley, 224 Or. 1; 355 P.2d 467 (1960); Commonwealth v Chapman, 359 Pa. 164; 58 A.2d 433 (1948); State v Thompson, 110 Utah 113; 170 P.2d 153 (1946); State v Hartley, 25 Wn.2d 211; 170 P.2d 333 (1946); State v Bragg, 140 W. Va. 585; 87 S.E.2d 689 (1955). The Court affirms Garcia's conviction of first-degre
Although environmental factors might provide a reasonable and sound basis for altering existing law, we have previously held: "If a change in long established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change." People v. Emmert, 198 Colo. 137, 141, 597 P.2d 1025, 1027 (1979) (quoting Smith v. People, 120 Colo. 39, 51, 206 P.2d 826, 832 (1949)).
The trial court's instruction also conforms with the long-standing common law rule that "voluntary drunkenness is no legal excuse for a crime perpetrated under the influence of intoxicating liquor unless its effect is to destroy the ability of the accused to form a specific intent, the existence of which is an element of the offense charged." Smith v. People, 120 Colo. 39, 47, 206 P.2d 826, 830 (1949). See also Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969); Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965); Brennan v. People, 37 Colo. 256, 86 P. 79 (1906).
We recognize the various rationales employed by courts to allow public recreational use of water overlying privately owned beds, i.e., (1) practical considerations employed in water rich states such as Florida, Minnesota and Washington; (2) a public easement in recreation as an incident of navigation; (3) the creation of a public trust based on usability, thereby establishing only a limited private usufructary right; and (4) state constitutional basis for state ownership. We consider the common law rule of more force and effect, especially given its long-standing recognition in this state. Sterling National Bank v. Francis, 78 Colo. 204, 240 P. 945 (1925). As noted in Smith v. People, 120 Colo. 39, 206 P.2d 826 (1949): "If a change in long established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change." We specifically note that it is within the competence of the General Assembly to modify rules of common law within constitutional parameters.
Previously, Colo. Sess. Laws 1972, ch. 44, 39-8-109 at 229; People v. Lyles, 186 Colo. 302, 526 P.2d 1332 (1974).Smith v. People, 120 Colo. 39, 206 P.2d 826 (1949); Turley v. People, 73 Colo. 518, 216 P. 536 (1923); See Leick v. People, 136 Colo. 535, 322 P.2d 674 (1958).Starkey v. Bryan, 166 Colo. 43, 441 P.2d 314 (1968).
[2] It is well established in Colorado, and many other jurisdictions, that a lay witness may, when a proper foundation is laid, express an opinion as to the sanity of another. Rupert v. People, 163 Colo. 219, 429 P.2d 276 (1967); Smith v. People, 120 Colo. 39, 206 P.2d 826 (1949); and Turley v. People, 73 Colo. 518, 216 P. 536 (1923). See also McKenzie v. United States, 266 F.2d 524 (10th Cir. 1959).
In these circumstances any changes deemed necessary should come from the legislature or from the people by their exercise of the power to initiate amendments to the constitution. This guiding principle we set forth in Smith v. People, 120 Colo. 39, 206 P.2d 826, as follows: "* * * The only answer to this question is that the law as declared and interpreted over many years is well established, and our function is to declare the law as we find it. If a change in long established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change.
It is sufficient to say that all the evidence pertinent to the defense of voluntary drunkenness negating defendant's ability to form the deliberate and premeditated intent to kill, presented a question of fact for determination by the jury. As appears from the abbreviated analysis of the testimony above set forth, there is an abundance of evidence supporting the verdict. Upon this point we direct attention to Smith v. People, 120 Colo. 39, 206 P.2d 826, from which we quote the following: "While the defendant was to some extent under the influence of intoxicating liquor, there is ample evidence to sustain the finding of the jury that he was capable of forming a design deliberately and premeditatedly to kill.
" Turley v. People, 73 Colo. 518, 216 Pac. 536; Smith v. People, 120 Colo. 39, 206 P.2d 826. Whether the ability of a person to drive an automobile has been impaired by the consumption of intoxicating liquor is a subject upon which a lay witness cannot express an opinion. The testimony of those who made the alcohol test of blood taken from the defendant was that a normal person whose blood showed a concentration of .19 of alcohol would be intoxicated.
It is unnecessary for us to quote from the several cases in this jurisdiction which have held that this court can consider only those matters presented to the trial court in a motion for a new trial. See Enyart v. People, 70 Colo. 362, 201 Pac. 564; Smith v. People, 120 Colo. 39, 206 P.2d 826; Welch v. People, 115 Colo. 42, 170 P.2d 781; Perry v. People, 116 Colo. 440, 181 P.2d 439, and Roll v. People, 132 Colo. 1, 284 P.2d 665. In the instant case the jury was properly instructed, and rendered its solemn verdict finding defendant guilty as charged under evidence ample to establish guilt.