
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Fred Norman BYERLEY, Defendant-Appellee.
    No. 81SA282.
    Supreme Court of Colorado, En Banc.
    Oct. 19, 1981.
    Alexander M. Hunter, Jr., Dist. Atty., Peter Michael Maguire, Deputy Dist. Atty., Boulder, for plaintiff-appellant.
    I. Melvin Tatsumi, Boulder, for defendant-appellee.
   PER CURIAM.

This is an appeal by the prosecution concerning a question of law, as authorized by section 16-12-102, C.R.S.1973 (1978 Repl. Vol. 8) and C.A.R. 4(b). The appellant seeks review of an order of the district court of the twentieth judicial district which granted the defendant’s request to be tried for a class 4 felony charge by a jury of three persons. We disapprove the ruling of the district court.

The defendant, Fred Norman Byerley, was charged with second-degree assault, section 18-3-203, C.R.S.1973 (1978 Repl. Vol. 8), a class 4 felony. Immediately prior to jury selection, the defendant made an oral motion to the court requesting that his case be tried to a jury of three persons, pursuant to section 18-1-406(4), C.R.S.1973 (1978 Repl. Vol. 8). The trial judge granted the motion and the defendant was subsequently acquitted of the charge. The acquittal has not been challenged in this court.

The appellant seeks a clarification of section 18-1-406(4), C.R.S.1973, which provides:

“(4) Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before verdict, to be tried by a number of jurors less than the number to which he would otherwise be entitled.”

This case is controlled by People v. The District Court in and for the Twentieth Judicial District, Colo., 634 P.2d 44, (1981). In that case we held that a person charged with a non-capital felony may elect to be tried by a jury of fewer than twelve, but not less than six persons.

The ruling of the district court is therefore disapproved.  