
    No. 22660
    Rufus Max Apodaca v. the People of the State of Colorado
    (431 P.2d 763)
    Decided September 18, 1967.
    See Martinez v. People, 163 Colo. 503, 431 P.2d 765, announced the same date as instant decision, in which assignments of error which formulate the basis for reversal are set forth in detail.
    Robert W. Caddes, for plaintiff in error.
    Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, James W. Creamer, Jr., Assistant, Paul D. Rubner, Assistant, for defendant in error.
    
      En Banc.
    
   Mr. Justice Hodges

delivered the opinion of the Court.

Plaintiff in error, Rufus Max Apodaca, was the defendant in the trial court and will be referred to herein as defendant.

The defendant and Raymond Pedro Martinez were charged in a multi-count information and found guilty by a jury of the first four counts, namely, burglary, conspiracy to commit burglary, larceny, and conspiracy to commit larceny. On the first two counts, the defendant was sentenced on each to a term in the penitentiary of not less than one and not more than three years, the sentences to run concurrently. On the third and fourth counts of larceny and conspiracy to commit larceny, the defendant was sentenced to six months on each charge which sentences were suspended.

Raymond Pedro Martinez was likewise found guilty on the same counts and sentenced. He also seeks reversal by his writ of error on generally the same assignments of error as argued by the defendant. See Martinez v. People, 163 Colo. 503, 431 P.2d 765, announced the same date as our decision herein. In Martinez we detailed the assignments of error which formulate the basis for reversal which will not be herein repeated.

The judgments of the trial court as to the first count (burglary) and the second count (conspiracy to commit burglary) are reversed. These counts are ordered dismissed with leave granted to the People to file a new information as to these counts.

The judgments of the trial court as to the third count (larceny) and the fourth count (conspiracy to commit larceny) are reversed and as to these counts this case is remanded to the trial court for a new trial.

The judgments are reversed as to the first and second counts of the information and these counts ordered dismissed with leave to refile. As to the third and fourth counts, the judgments are reversed and remanded for a new trial.  