Santiago v. People

558 P.2d 441, 192 Colo. 320

Opinion

MR. JUSTICE HODGES

delivered the opinion of the Court.

The defendant was found guilty by a jury of unlawfully selling, and conspiring to sell, a narcotic drug. We granted certiorari to review the court of appeals decision, which affirmed the defendant’s conviction. See People v. Santiago, 38 Colo. App. 3, 554 P.2d 710 (1976). The court of appeals held that the trial court properly refused to give an instruction requested by the defendant to the effect that should the jury find that defendant was acting as an agent of the purchaser, rather than the seller, she could not be found guilty of the offenses charged.

We reverse the judgment of the court of appeals. In People v. Fenninger, 191 Colo. 334, 552 P.2d 1018 (1976), we recently adopted the rule that the so-called “procuring agent” defense is available to a defendant charged with offenses of sale and conspiracy to sell narcotics. The record here reveals considerable evidence that this defendant was acting solely on behalf of a buyer. On this basis, the defendant was entitled to the instruction requested by her and refused by the trial court.

Judgment reversed with directions to remand to the trial court for a new trial.

MR. JUSTICE ERICKSON does not participate.