specially concurring:
I concur in the majority opinion, but wish to say something concerning point III. I would not base the result as the majority opinion is grounded.
As is stated in the majority opinion, the defendant has been placed in jeopardy as to the misdemeanor count. I assume that proof of all of the elements of the misdemeanor are necessary to a conviction of either felony count; and, to have a conviction of either felony count, there must be proof of additional elements. In spite of Crane v. People, 91 Colo. 21, 11 P.2d 567 (1932), I also assume that, if all evidence could have been considered as to all counts and if the jury *238had acquitted as to the misdemeanor count, the guilty verdicts as to the felonies would be rendered impotent. The question involved then becomes, Does the order sustaining the motion to dismiss have the effect of a finding of not guilty which ordinarily would permit the conviction of either felony count from standing?
Under the circumstances here, it would be a fiction to say that the order sustaining the motion to dismiss constituted a determination as to the elements of the misdemeanor.