People v. Weiss

KELLY, Judge,

specially concurring.

I concur in the majority only because I feel obligated to do so by the holding in *513People v. Moya, 182 Colo. 290, 512 P.2d 1155 (1973), which specifically requires that the trial court give a tendered theory of defense instruction even though it consists of no more than an explanation of defendant’s actions, and is based on testimony in the record.

In my view, Moya conflicts directly with a long line of cases which hold that argumentative instructions should be refused where the defense theory is embodied in other instructions given by the court. See People v.…