(431 P.2d 475)
No. 22718.Supreme Court of Colorado.
Decided September 11, 1967.
Defendant was convicted of an assault with a deadly weapon and brought error.
Reversed.
1. ASSAULT AND BATTERY — Deadly Weapon — Insufficiency of Evidence — Confession of Error — Acquittal — Appeal and Error. In prosecution for assault with a deadly weapon, where People’s evidence is not sufficient to support guilty verdict and Attorney General confesses error and review of record wholly justifies Attorney General’s action, held, under such circumstances, trial court should have granted defendant’s motion for judgment of acquittal.
Error to the District Court of the City and County of Denver, Honorable Edward J. Keating, Judge.
Edward H. Sherman, for plaintiff in error.
Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, George E. DeRoos, Assistant, for defendant in error.
En Banc.
Page 472
MR. JUSTICE KELLEY delivered the opinion of the Court.
Plaintiff in error McGee was convicted of an assault with a deadly weapon in violation of C.R.S. 1963, 40-2-34. He is here on a writ of error in which his principal assignment of error is that the People’s evidence is not sufficient to support the verdict, consequently the trial court erred in not granting his motion for judgment of acquittal.
The People charged that on July 29, 1965, the defendant made a felonious assault on one Emma Jordan with a gun with the intent to commit bodily injury upon her, no considerable provocation then appearing for the assault and the circumstances then and there showing an abandoned and malignant heart in him.
[1] In his brief the Attorney General confesses error and a review of the record wholly justifies the Attorney General’s action.The trial court should have granted the defendant’s motion for judgment of acquittal. See Shreeves v. People, 126 Colo. 413, 249 P.2d 1020.
The judgment is reversed and the cause remanded to the trial court with directions to dismiss the information and discharge the defendant.
Page 473