People v. Olinger, No. 76-264
| Docket Nº | No. 76-264 |
| Citation | 39 Colo.App. 491, 566 P.2d 1367 |
| Case Date | July 07, 1977 |
| Court | Court of Appeals of Colorado |
Page 1367
v.
James Douglas OLINGER, Defendant-Appellant.
Rehearing Denied July 28, 1977.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Nancy E. Rice, Deputy State Public Defender, Denver, for defendant-appellant.
[39 Colo.App. 492] VanCISE, Judge.
Defendant, James Douglas Olinger, appeals his jury conviction of second degree assault on a peace officer, a class 4 felony. We reverse.
In 1974, Olinger was arrested on a disturbance charge, was handcuffed, placed in the rear seat of a police car, and taken to the Lakewood police station for processing. Because Olinger was violent and uncooperative, he was moved to the Jefferson County jail. En route, Olinger made many threats to the officers. When he was taken out of
Page 1368
the police car, still handcuffed, he struggled with one of the officers, knocked him back and kicked his left shin. The assault charge arose from this incident.Had he been charged and convicted of a violation of 1971 Perm.Supp., C.R.S.1963, 40-3-203(1)(c), assault on a peace officer with intent to cause bodily harm, also a class 4 felony, or had he been convicted of third degree assault, 1971 Perm.Supp., C.R.S.1963, 40-3-204 (now § 18-3-204, C.R.S.1973), a class 1 misdemeanor, 1 the evidence would have sustained a conviction thereof. However, he was tried under 1971 Perm.Supp., C.R.S.1963, 40-3-203(1) (f) (now § 18-3-203(1)(f), C.R.S.1973), which provides that a person commits the crime of assault in the second degree if:
"While lawfully confined, he violently applies physical force against the person of a peace officer or fireman engaged in the performance of his duties, and the person committing the offense knows or reasonably should know that the victim is a peace officer or fireman engaged in the performance of his duties." (emphasis added)
Olinger contends that he was not "lawfully confined" at the time of the assault and that, therefore, the court should have granted his motion for acquittal. We agree.
Penal statutes must be construed strictly, and all doubts must be resolved in favor of those against whom such statutes are sought to be...
To continue reading
Request your trial
-
People v. Payne, Court of Appeals No. 18CA0283
...2019, does not define "lawfully confined or in custody," the terms have distinct meanings under Colorado law. See People v. Olinger , 39 Colo. App. 491, 493, 566 P.2d 1367, 1368 (1977) ("It is apparent that the legislature intended the word ‘confined’ to have a meaning different from and to......
-
People v. Schoondermark, No. 84SA99
...1026 (Colo.App.1981); People v. Mason, 632 P.2d 616 (Colo.App.1981); People v. Gibson, 623 P.2d 391 (Colo.App.1981); People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977). Defendant's argument is correct; the application of physical force is required. However, his argument that the evid......
-
People v. Armstrong, No. 84SA365
...arrest situations as well as to detention facilities. In both People v. Wieder, 693 P.2d 1006 (Colo.App.1984), and in People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), the court of appeals held that the General Assembly intended the word Page 168 "confined" to have a meaning differ......
-
People v. Wieder, No. 82CA0049
...physical force against the person of a peace officer ... engaged in the performance of his duties ...." Relying on People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), defendant maintains that because he was neither confined in a penal institution nor "in custody" this statute is inap......
-
People v. Payne, Court of Appeals No. 18CA0283
...2019, does not define "lawfully confined or in custody," the terms have distinct meanings under Colorado law. See People v. Olinger , 39 Colo. App. 491, 493, 566 P.2d 1367, 1368 (1977) ("It is apparent that the legislature intended the word ‘confined’ to have a meaning different from and to......
-
People v. Schoondermark, No. 84SA99
...1026 (Colo.App.1981); People v. Mason, 632 P.2d 616 (Colo.App.1981); People v. Gibson, 623 P.2d 391 (Colo.App.1981); People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977). Defendant's argument is correct; the application of physical force is required. However, his argument that the evid......
-
People v. Armstrong, No. 84SA365
...arrest situations as well as to detention facilities. In both People v. Wieder, 693 P.2d 1006 (Colo.App.1984), and in People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), the court of appeals held that the General Assembly intended the word Page 168 "confined" to have a meaning differ......
-
People v. Wieder, No. 82CA0049
...physical force against the person of a peace officer ... engaged in the performance of his duties ...." Relying on People v. Olinger, 39 Colo.App. 491, 566 P.2d 1367 (1977), defendant maintains that because he was neither confined in a penal institution nor "in custody" this statute is inap......