Opinion
No. 22276.
Decided October 23, 1967.
Defendant was charged with the crime of assault with a deadly weapon. From direction of verdict of not guilty of offense of simple assault, People brought error.
Judgment Disapproved.
1. CRIMINAL LAW — Facts — Dispute — Evidence — Guilt — Credibility — Witness — Choice. In a disputed factual situation wherein the People have produced competent evidence which, if believed, would establish the guilt of the defendant beyond a reasonable doubt, it is for the jury to determine the credibility of the witnesses and which of the conflicting of the witnesses and which of the conflicting versions it chooses to accept.
2. Court — Usurpation — Function of Jury — Credibility — Conflict of Evidence — Choice. The court should not, and in law cannot, usurp function of jury pertaining to credibility of witnesses and which of the conflicting versions it chooses to accept.
3. ASSAULT AND BATTERY — Affray — Police — Dismissal — Deadly Weapon — Evidence — Lesser Included Offense — Jury — Propriety. In affray between defendant and police officers, where trial court at close of People's evidence dismissed charge of assault with deadly weapon but ruled that there was sufficient competent evidence on lesser included offense of simple assault to submit to jury, held, court's ruling on the evidence at that juncture was correct.
4. Simple Assault — Definition. Simple assault has been defined as an unlawful attempt coupled with a violent injury on the person of another.
5. Evidence — Corroboration — Affray — Police Officers — Disputed Version — Justification — Directed Verdict — Simple — Jury — Interference. Where evidence produced by defendant and his witnesses corroborated fact that an affray between defendant and police officers had taken place, but established disputed version which, at most, advanced theory of justification or self-defense, held, with case in such posture trial court interfered with function of jury when it directed verdict of not guilty on simple assault offense.
Error to the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Duke W. Dunbar, Attorney General, James D. McKevitt, District Attorney, Gregory A. Mueller, Assistant, James W. Creamer, Jr., Chief Deputy, Thomas H. May, Deputy, for plaintiff in error.
Gertrude A. Score, Hyman A. Goodstein, for defendant in error.
Defendant in error Gholston was charged with the crime of assault with a deadly weapon as a result of physically interfering with two police officers who were attempting to arrest his wife for creating a disturbance. The facts indicate that the defendant grabbed a nightstick belonging to one of the officers and swung it at both officers, striking one of them on the wrist.
At the close of the evidence by the People, the trial court dismissed the "deadly weapon" charge and ruled that there was sufficient competent evidence on the lesser included offense of simple assault to submit that to the jury. After the defense concluded the presentation of its evidence, which consisted of nothing more than a conflicting version of the affray, the court nevertheless directed a verdict of not guilty on the simple assault offense. It is to this asserted error in law by the court that the People direct this writ of error.
[1,2] We disapprove of the action of the trial court. In a disputed factual situation wherein the People have produced competent evidence which, if believed, would establish the guilt of the defendant beyond a reasonable doubt, it is for the jury to determine the credibility of the witnesses and which of the conflicting versions it chooses to accept. The court should not, and in law cannot, usurp this function and substitute its judgment on matters strictly within the province of the jury.
[3,4] The court had ruled at the close of the People's evidence that a case of simple assault had been established. That offense has been defined as "an unlawful attempt coupled with a present ability to commit a violent injury on the person of another." Haas v. People, 155 Colo. 371, 394 P.2d 845. The court's ruling on the evidence at that juncture was correct.
The testimony produced by the defendant and his witnesses was actually in the nature of "confession and avoidance." The evidence corroborated the fact that the affray between Gholston and the officers had taken place; nevertheless, it established a disputed version which, at most, advanced a theory of justification or self-defense. With the case in such a posture, we hold that the trial court interfered with the function of the jury.
The judgment is disapproved.
MR. CHIEF JUSTICE MOORE, MR. JUSTICE McWILLIAMS and MR. JUSTICE PRINGLE concur.