Van Pelt v. People

Opinion by Mr. Justice Day. In Howard v. People, 173 Colo. 209, 477 P.2d 378, we have reiterated the necessary elements to guide a trial court in determining whether it should instruct the jury on a lesser included offense. People v. Futamata, 140 Colo. 233, 343 P.2d 1058, is a case discussing in considerable detail the test involved. Thus in this case no good purpose would be served in restating the law in answer to the contention by the plaintiff in error — who was convicted of issuing a check for $50 on a bank in which'he did not have sufficient funds —that he was entitled to an instruction on the lesser included offense of issuing a short check under $50. In evidence was the check which on its face was for the sum of $50. A check cannot be for $50 and under $50 at the same time. A statement of the proposition itself refutes the argument advanced. The plaintiff in error in seeking reversal of his *203 conviction additionally argued that the admission of evidence of other checks did not tend to prove intent, design or motive in the commission of the charge being tried because of the remoteness of time of the other checks involved. We note from the record the checks were all passed within one month prior to the issuance of the check on which plaintiff in error was convicted. In our view there is nothing remote about such a check writing spree. The argument is without merit. The judgment is affirmed. Mr. Chief Justice Pringle, Mr. Justice Groves and Mr. Justice Lee concur.