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Daniels v. People2/7/1966
Daniels was charged with causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as such offense is defined by C.R.S. 1963, 40-2-10. More specifically, the charge was that Daniels caused the death of one Joseph L. Carter by operating a motor vehicle in a reckless, negligent and careless manner while under the influence of intoxicating liquor. To this charge Daniels pled not guilty, and a trial by jury ensued. The jury returned a verdict finding Daniels guilty as charged in the information, and he was thereupon duly sentenced to a term of from 2 to 4 years in the state penitentiary. By writ of error Daniels seeks reversal of this judgment and sentence.
Daniels' only contention in this court is that the trial court allegedly committed error in refusing to instruct the jury on the crimes or offenses of involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving. In connection with such refusal, error is additionally predicated on the trial court's further refusal to submit to the jury appropriate forms of verdicts concerning each of these various offenses. In support of this assignment of error Daniels asserts that involuntary manslaughter, driving while under the influence of intoxicating liquor, reckless driving and careless driving are all lesser offenses
which are included in the crime of causing a death by operating a motor vehicle while under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, and that each and all of these lesser included offenses under the evidence should have been submitted to the jury by appropriate instruction and form of verdict. In this regard, the trial court declined to go along with Daniels' request, and submitted to the jury only two forms of verdict, i.e., a "guilty" and a "not guilty" form of verdict as to the crime defined in C.R.S. 1963, 40-2-10. Hence, the sole issue before us on review is whether the trial court was correct in so doing, inasmuch as such is the only matter raised by Daniels in this court.
In People v. Futamata, 140 Colo. 233, 343 P.2d 1058, this court laid down the following test for determining whether a particular offense, though not charged, is nevertheless "included" in the offense which is charged: if the greater of two offenses, which is charged, "includes all of the legal and factual elements of the lesser," then the greater includes the lesser; but if the lesser offense "requires the inclusion of some necessary element" which is not an essential and material element in the greater offense, then the lesser offense is not included in the greater offense. In other words, the greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. In this connection it should be noted that the character of an offense is determined, not by the evidence which may be legally admissible under the charge, but by the evidence which is required to sustain the charge.
Comparing, then, the essential elements of involuntary manslaughter to those of the crime of causing a death while driving a motor vehicle under the influence of intoxicating liquor, as defined in C.R.S. 1963, 40-2-10, it becomes clear that involuntary manslaughter is not a lesser included offense in a charge brought
under C.R.S. 1963, 40-2-10. And the fact that the attorney general "confesses" error in this particular is not dispositive
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