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<br />58S Colo. 509 PACIFIC REPORTER, 2d SERIES` ~
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<br />R; Arrirly v. People, 103 Cnlo. 2Q R2 1' °d
<br />iii; Graham v. People. 9i Colo. i~}3, ,iti
<br />P.2d R7. _
<br />III.
<br />[3] The third contention relates to the
<br />failure of the court to gr:utt do (cud:uri'~
<br />motion (or judgment of acquittal on the
<br />grounds of insuf ficirncy of the ecidence.
<br />The credibility of the witnesses and the
<br />teeigh[ to be giecn [o their testimony uac a
<br />matter for the jury's determination. I'nnn
<br />our review of the record, dewing the eci-
<br />dence and the reasonable inferences thrre-
<br />from in the light most favorable to the
<br />('eagle, we hold the verdict to be amyl}'
<br />supported by the record. This ("Dort a ill
<br />nut sit as a [hirtrentlt juror and substitute
<br />its judgment for that of the jury. Ila bbonl
<br />c. Pcoplc, iii Coln. -417, VRR P?d ii4.
<br />Afxthis v. Pcoplc, 167 Colo. i(N, ~1-IS I'?d
<br />633.
<br />IV.
<br />[4] Finally, defendant claims recersildc
<br />error arising from the rebuttal testimony
<br />n( the People's witness, I}ctec[ivc M1lorris
<br />M1iullins. 'fhc defendant's girl (Wend Karl
<br />tcsti (ied on his behalf. :\mong other
<br />things, she stated the defendant had in (act
<br />entered the victim's apartment with her
<br />earlier in the evening and had remained
<br />there for some time, during which he
<br />mixed her a drink. This supported defend-
<br />ant's version of the events of the early
<br />evening and contradicted the I'enple's eci-
<br />dence that he had not at that time entered
<br />the apartment with her. Officer \lullins
<br />further testified [ha[ she told him during
<br />his incesttgatton of [he crime that when
<br />she inquired concerning Mrs. Rn}9 e's
<br />death, the defendant burst into [cars and
<br />said he rrmembered the icebox, the V.O.
<br />whiskey, and gcttiny; into his c~ir with a
<br />knife in hand, which he later thrrw• ae•ay.
<br />Although incompetent, the incriminating
<br />hearsay dcclar:UUm was not objrctcd tn,
<br />[tor was its admission in ecidence assigned
<br />as rrror in rlr(cndanl's motion for aura
<br />trial. llad linicly ubjectimt been uctde,
<br />this evidcuce tcotdd properly Iner been er
<br />eluded. liowecer, its relevancy to defend-
<br />ant's [;wilt or innocence aas clear, and its
<br />prubatice [aloe teas for the j try's dctermi-
<br />natimt once it had been ado fitted without
<br />objcctimt. C Torcia, 2 \\'h;. non's Crimi~
<br />nnl Ecirlcna• ` 273 (I,ith e 1. Iglu: C.
<br />McCormick, Law of Evidence § i.4_ tie
<br />decline to consider this as plain error justi~
<br />fying n•versal and a nett trig .
<br />The judgment is nffirmerl.
<br />I)AY, GROVE] and ERICKSO:~', JJ~~
<br />concur.
<br />O SYII YVMIfr 11511X
<br />Laverne GREEN et al., Plalntlire•Appelleee,
<br />v.
<br />CASTLE CONCRETE COMPAiV V, a Colo•
<br />rado corporation, Detentlant•Appellant.
<br />No. 25737.
<br />Snprrnu• C_'our[ of ('nloraQo,
<br />l:u 14u1r.
<br />April ?3, 1!173.
<br />Rehm ring Ihatiwl >Iuy '!1, 1979.
<br />Appeal Icy rnncrete company seeking
<br />to set aside a permanent injunction en-
<br />tered against it by the I~istrici Court EI
<br />Paso Cranny, Gcorgc hi. Gibscn, ). The
<br />tiupreme Court. 1)ay, J., held, inter alia,
<br />that activities of defendant coccrete com-
<br />pane on its own property did not consti-
<br />httc :+ "public nuisance" where operation
<br />of a limestone quarry by the cot Crete tom'
<br />p;my teas a pcrmissiblc actieit}• he Icgisla~
<br />ticc coning action.
<br />2evcrscd and remandrrl with diree-
<br />tiotts rovacate the injunction and dismiu
<br />the complaint.
<br />(~mers, I., cunrnrmd in resuh and bled
<br />opinion in .ehich Kc11ey, J., joinc9.
<br />I'ringlr, C. L, dicsrnted and 'ilyd opin~
<br />ivn.
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