Miller v. District Court In and For Nineteenth Judicial Dist., 27487
Decision Date | 25 July 1977 |
Docket Number | No. 27487,27487 |
Citation | 193 Colo. 404,566 P.2d 1063 |
Parties | Robert N. MILLER, District Attorney, Nineteenth Judicial District, Weld County, Colorado, Petitioner, v. DISTRICT COURT IN AND FOR the NINETEENTH JUDICIAL DISTRICT, State of Colorado, and Honorable Robert A. Behrman, District Judge in and for the Nineteenth Judicial District, State of Colorado, Respondents. |
Court | Colorado Supreme Court |
Robert N. Miller, Dist. Atty., William G. Arries, William L. Crosier, Deputy Dist. Attys., Greeley, for petitioner.
Davies & Saint-Veltri, Leonard E. Davies, Denver, for respondents.
Petitioner Robert N. Miller, Weld County district attorney, seeks relief in the nature of prohibition and mandamus from an order of respondent Weld County District Court. The court, after preliminary hearing, dismissed two of four counts against defendant Joseph Martin Roybal and reduced the remaining counts. We issued our rule to show cause, which we now make absolute.
Defendant and three others were charged by information with menacing with a deadly weapon, section 18-3-206, C.R.S.1973, second-degree assault, section 18-3-203(1)(b), C.R.S.1973, possession of an illegal weapon, section 18-12-102, C.R.S.1973, and unlawful use of explosives or incendiary devices, section 18-12-109, C.R.S.1973 (1976 Supp.). These charges arose from the allegation that defendant threw a beer bottle containing an explosive device in the direction of the complaining witnesses' house.
The evidence at the preliminary hearing showed that the device exploded twenty feet from one witness. The explosion scattered glass fragments onto the yard and front porch of the house, where another witness was standing. There was testimony that flying glass could inflict bodily injury. Testimony on the nature and force of the device conflicted. The noise from the explosion was described as not too loud, loud, louder than an ordinary firecracker, and audible three blocks away. After the incident, two of defendant's companions yelled "almost got you this time Morgan" to one of the complaining witnesses.
Faced with this evidence, the court ruled that the device did not constitute a deadly weapon because of the way it was used:
Accordingly, the court reduced count 1 to ordinary menacing, reduced count 2 to reckless endangerment, and dismissed counts 3 and 4.
As we noted in Hunter v. District Court, Colo., 543 P.2d 1265, in Colorado a preliminary hearing is not a mini-trial but is limited to determining whether there is probable cause to believe that the defendant committed a crime. Consequently, where the testimony at a preliminary hearing conflicts, a question of fact exists for determination by a jury, and the judge must draw the inference favorable to the prosecution. Against this principle, we examine the ruling of respondent court.
Both menacing with a deadly weapon under section 18-3-206 and second-degree assault under section 18-3-203(1)(b) require the use of a deadly weapon. The court reduced these charges on the ground that there was no probable cause established to support the charge that the explosive device thrown onto the complaining witnesses' lawn was a deadly weapon. We believe the court erred in this ruling.
Section 18-3-206, C.R.S.1973, defines menacing as follows:
Section 18-1-901(3)(e), C.R.S.1973, defines "deadly weapon" thus " 'Deadly weapon' means any firearm, knife, bludgeon, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or...
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