People v. Nace, 25363
| Decision Date | 25 June 1973 |
| Docket Number | No. 25363,25363 |
| Citation | 511 P.2d 501 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donetta Mae NACE, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.
This is an appeal from a conviction of assault with the intent to commit murder in violation of C.R.S.1963, 40--2--34. Appellant will be referred to as defendant.
A summary of the events leading to and culminating in the charge follows: Defendant's son Ronny and the defendant had a strained relationship which had existed for several years. The continual feuding led to Ronny's being evicted from the family home. Several days later Ronny returned to the house for the alleged purpose of securing 'his' roofing tools so that he might work. There was a confrontation between defendant and her son, but Ronny obtained the tools and started to leave. Defendant had originally agreed to release the tools to her son, but changed her mind; and, while brandishing a pistol, ordered the youth to leave the tools in the car. Defendant again ordered Ronny to leave the premises. After driving around the block and parking near the house, Ronny entered the house by the back door. When defendant learned of his return into the house, she proceeded upstairs to find him. Upon discovering Ronny's hiding place, defendant pointed the gun at him and said, 'I'll kill you.' Ronny was standing about eight steps away and partially behind the wall in the bathroom when defendant fired the gun. Ronny was grazed by the shot and immediately left the house seeking medical aid at a nearby hospital.
Defendant's theory of the case revolves around testimony and other evidence that she was an expert marksman. She contended that her only intent was to persuade her 'agitating' son to leave the house, and that if she had wanted to seriously injure her son, she could have easily done so. She testified she sought 'only to scare him.'
Defendant's major contentions on appeal concern the impropriety of certain instructions given to the jury. We agree and remand the case for a new trial.
Among the erroneous instructions by the court was one on specific intent. It read:
This instruction was too general and failed to advise the jury as to what 'the requisite specific intent' referred to in this case.
The court then gave the following two related instructions:
'You are further instructed that before the Defendant can be convicted of the crime of assault with intent to commitmurder, it must appear from the evidence, beyond a reasonable doubt, that had the assault resulted in the death of the person assaulted, the crime would have been murder.
'The Court will, therefore, give such Instructions on the law of murder as are applicable to the present case.'
'You are instructed that while the defendant is charged in this information with murder in the first degree, you may find a verdict of murder in the first degree, or murder in the second degree, or voluntary manslaughter, or involuntary manslaughter, or justifiable or excusable homicide--which last would be not guilty--as in your judgment the evidence may warrant.
'If you find...
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People v. Lowe
... ... Appellant tendered an instruction on specific intent similar to that disapproved by this Court in People v. Nace, ... Colo., 511 P.2d 501, where there was a failure to identify the requisite specific intent referred to. It was, therefore, incumbent on the ... ...
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People v. Mackey
...key witness, Sylvester Williams, was unreliable. Clearly, a defendant is entitled to an instruction on his theory of the case, People v. Nace, Colo., 511 P.2d 501, provided it is grounded in the evidence. Payne v. People, 110 Colo. 236, 132 P.2d 441. However, the instructions tendered here ......
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People v. Rivera
...establish all the essential elements of the lesser crime to commit the greater crime. Consequently, the dicta contained in People v. Nace, Colo., 511 P.2d 501 (1973), was erroneous in this The conclusion that the statutory test shall be applied to find if an offense is lesser included place......
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ARTICLE 3
...evidence", was too general and failed to advise the jury as to what the requisite specific intent was. People v. Nace, 182 Colo. 127, 511 P.2d 501 (1973). Instruction on possession of knife erroneous. It was error to instruct the jury that it was unlawful to possess or carry a pocket knife,......
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ARTICLE 3 OFFENSES AGAINST THE PERSON
...evidence", was too general and failed to advise the jury as to what the requisite specific intent was. People v. Nace, 182 Colo. 127, 511 P.2d 501 (1973). Instruction on possession of knife erroneous. It was error to instruct the jury that it was unlawful to possess or carry a pocket knife,......