Volume 155 — Colorado Reports

1. CRIMINAL LAW — <italic>Confession — Corroboration — Evidence — Sufficiency</italic><italic>— Conviction</italic>. An extrajudicial confession without corroboration was not sufficient to sustain a conviction for statutory rape, incest and taking indecent liberties with a child under the age of sixteen years where the only evidence tending to establish the commission of the crimes charged was the confession of the accused. 2. <italic>Conviction — Confession — Corroboration — Evidence — Corpus</italic><italic>Delicti</italic>. A conviction of crime cannot be upheld where it is based upon the uncorroborated confession of the person accused; there must be evidence of the corpus delicti apart from the statements contained in the confession.<page_number>Page 20</page_number>

1. EXECUTORS AND ADMINISTRATORS — <italic>Estate — Duties — Management</italic><italic>— Surcharge</italic>. To surcharge an executor there must be a finding that he failed to exercise common prudence, common skill and common caution in management of estate, and that these failures resulted in loss to estate and prejudice to persons in interest. 2. <italic>Trial Court — Findings and Conclusions — Weight</italic>. Great weight must be accorded the findings and conclusions of trial judge on issue whether executor should be surcharged with respect to transactions objected by claimant. 3. <italic>Statutes — Holder of Encumbrance — Property of Deceased</italic>. Under C.R.S. '53 152-12-1, et seq., holder of encumbrance upon property of deceased may follow one of three routes: (1) he may ignore the estate entirely and look only to his security, (2) he may file a conditional claim so that he may share in any assets in event there if a deficiency, or (3) he may ignore the security and look only to the assets of the estate. 4. <italic>Claims — Holder of Encumbrance — Failure to File — Effect</italic>. Failure to file claim by holder of encumbrance upon property of deceased does not discharge lien nor render it unenforceable. 5. <italic>Liens — Conveyance — Surcharge</italic>. Where liens on property remained in full force and effect, any conveyance by executor must be made subject to encumbrance; hence claimant's attempt surcharge amount of lien to executor is without merit. 6. <italic>Duties — Assets — Findings — Surcharge</italic>. Where it was executor's<page_number>Page 134</page_number> duty to preserve assets of estate and to prevent foreclosure of liens upon such assets by payment of principal and interest where common prudence so dictated, and where such payments were made in best interests of estate and trial court so found, executor should not be surcharged. 7. <italic>Judgment — Estate — Surcharge — Future</italic>. Executor not required to have such prescience that he may be surcharged if his judgment as to best interests of estate, exercised with due care and caution, is not borne out by future events. 8. <italic>Insurer</italic>. Under the law, an executor is not an insurer. 9. <italic>Real Property — Inventory Value — Sales Price — Estoppel —</italic><italic>Findings — Best Interests</italic>. Where trial court found that sales made by executor were in best interest of estate, contention of claimant, that executor was estopped to assert that market values were anything less than those in inventory filed by him and he should be surcharged for difference between inventory value and sale price, held untenable. 10. <italic>Rentals — Breach of Duty — Findings — Evidence</italic>. Where trial court found no breach of duty in manner in which executor dealt with rentals on various properties in estate, its finding will not be disturbed in view of competent supporting evidence. 11. <italic>Contracts — Ambiguity — Encumbrances — Intent</italic>. Where executor followed a realistic course in the disposition of certain properties sold by decedent in his lifetime on contracts of sale and to which he still held legal title at time of his death, contention of claimant that executor had no right to give purchasers credit for encumbrances which they were required to assume was without merit; the contracts involved cannot be construed as to evince an intent on part of contracting parties that to purchase price should be added amount of existing encumbrances. 12. <italic>Findings — Real Property — Joint Tenancy — Conduct — Matter</italic><italic>of Law</italic>. Where trial court found that wife of decedent not only had color of title as a joint tenant of family home but was a bona fide purchaser for value of premises and that it would have been a needless expense on the estate to litigate the question of ownership notwithstanding isolated statements made by decedent to money lenders that he was sole owner in fee, it cannot be said as matter of law that executor acted with impropriety in not bringing an action to set aside conveyance to wife considering the record of previous ownerships of decedent and his wife in joint tenancy, the wife's contributions<page_number>Page 135</page_number> from her employment to joint bank account and her participation in loan. 13. HUSBAND AND WIFE — <italic>Personal Property — Joint Possession —</italic><italic>Presumption</italic>. Personal property, in joint possession of husband and wife, or concerning which there is no independent evidence as to which of them is in possession, is presumed to belong to husband; although such presumption is not conclusive. 14. APPEAL AND ERROR — <italic>Findings — Evidence</italic>. Reviewing court is bound by findings of fact of trial court where there is competent evidence in record to support those findings. 15. EXECUTORS AND ADMINISTRATORS — <italic>Trial Court — Household Goods</italic><italic>— Appraiser</italic>. Where trial court gave claimant benefit of doubt and surcharged executor in an amount in excess of what charge would have been had court adhered to value placed upon household goods by its appointed appraiser, claimant, in such case, cannot be heard to complain. 16. <italic>Claimant — Payment — Estoppel — Surcharge — Actions</italic>. Where executor during course of administration made certain assurances to claimant that her claim would be paid and did in fact make some payments to her, claimant's contention that executor now be estopped to deny insolvency of estate and that he be surcharged cannot be sustained as claim in estate arose from obligation of decedent and not executor and cannot be turned into action between claimant and executor for an obligation which executor may have individually incurred to claimant.

1. CONSTITUTIONAL LAW — <italic>Criminal Law — Right to Counsel — Due</italic><italic>Process</italic>. Conviction and sentence of defendant in 1956 for forcible rape without advising him of his right to counsel or offering or providing the assistance of counsel did not deprive him of his right to due process of law guaranteed by the constitutions of United States and State of Colorado. 2. CRIMINAL LAW — <italic>Right to Counsel — Propriety — Date of Conviction</italic>. The propriety of criminal proceedings against defendant who was not advised of his right to counsel must be determined by the law as it existed on the date of judgment of conviction.<page_number>Page 189</page_number> 3. CONSTITUTIONAL LAW — <italic>Criminal Law — Record on Error — Right</italic><italic>to Counsel — Due Process — Rules</italic>. At time judgment of conviction rendered against defendant in 1956, applicable law in Colorado was that failure of record on writ of error to disclose that defendant was advised of his right to counsel or an offer to provide the assistance of counsel did not deprive defendant of due process of law; Colo. R. Crim. P. 11 (a) requiring that persons accused shall be advised concerning their right to counsel was nonexistent at that time. 4. <italic>Federal — State — Due Process — Charge of Law — Effect</italic>. Even assuming that Supreme Court of United States has brought about change in law by determining that due process requires state courts to inform accused persons of right to counsel, such determination should not be given retrospective effect. 5. <italic>Arraignment — Charge — Testimony — Credibility — Due Process</italic><italic>— Criteria</italic>. Belated claim of defendant that when arraigned he did not understand meaning of charge of "rape by force and violence" deemed unworthy of belief; record falls far short of showing a denial of due process when tested by criteria announced by Supreme Court of the United States.

1. EVIDENCE — <italic>Negligence — Directed Verdict — Proximate Cause —</italic><italic>Appeal and Error</italic>. In an action involving a two-car collision where at the conclusion of plaintiff's presentation of evidence defendant moved for a directed verdict in his favor on the ground that viewing the evidence in a light most favorable to plaintiff there was no showing of any negligence on the part of defendant which was a proximate cause of personal injuries sustained by plaintiff, the trial court committed no error in granting the motion. 2. AUTOMOBILES — <italic>Speed — Opinion — Witness — Expert</italic>. Plaintiff's contention that defendant was exceeding lawful rate of speed cannot be sustained in view of lack of testimony to that effect; hence when trial court precluded investigating officer from expressing his opinion as to speed of defendant's vehicle on basis of damage to the respective vehicles, their location after impact, and skid marks made by defendant's vehicle, it committed no error, as there was an insufficient showing as to witness's qualification to give an opinion; also, there was no real second effort to qualify witness as an expert nor was there any offer of proof as to whether officer even had any opinion as to speed. 3. <italic>Evidence — Intoxication — Proximate Cause</italic>. Plaintiff's evidence of defendant's intoxication was too sketchy to warrant submission of case to jury that defendant was driving while in intoxicated condition or that accident was caused thereby. 4. <italic>Evidence — Headlights — Appeal and Error — Jury</italic>. Evidence was singularly lacking that defendant was driving without his headlights on; hence there was no error by trial court in refusing to submit entire matter to jury.<page_number>Page 198</page_number> 5. <italic>Evidence — Headlights — Statute</italic>. With reference to C.R.S. '53, 13-4-87 (1960 Perm. Supp.) which declares that lighted lamps are required upon every vehicle upon a highway at any time from half hour after sunset to half hour before sunrise and at any other time when there is no sufficient light, there was no evidence that defendant was driving with his lights off at a time or under such circumstances as would require him to have his lights on.

1. CRIMINAL LAW — <italic>Burglary — Larceny — Conspiracy — Evidence —</italic><italic>Sufficiency — Accomplices</italic>. There was ample evidence to sustain verdict of jury which found defendant guilty of crimes charged in spite of sharp conflict between state's evidence and defendant's evidence; especially if jury chose to believe testimony of defendant's accomplices. 2. <italic>Conviction — Testimony — Accomplices</italic>. A criminal conviction may be grounded on uncorroborated testimony of accomplices. 3. COURTS — <italic>Supreme Court — Fact Finding — Evidence — Witnesses —</italic><italic>Credibility — Trial Court</italic>. Supreme Court is not a fact finding body; it is not charged with the duty of weighing evidence and determining degree of credibility which should attach to persons testifying in trial court. 4. JURY — <italic>Duty</italic>. It is the duty of the jury to determine where the truth lies. 5. CRIMINAL LAW — <italic>Continuance — Trial Court — Discretion</italic>. Matter<page_number>Page 203</page_number> of granting district attorney one day continuance to locate missing witness rests within sound discretion of trial court and was not an abuse of discretion. 6. EVIDENCE — <italic>Newly Discovered — After Verdict — New Trial — Appeal</italic><italic>and Error</italic>. Where wife of defendant allegedly overheard prejudicial remark, in hallway, during trial, about which she first advised her husband's attorney only after jury returned its verdict, this was not such newly discovered evidence as would justify or require the granting of a new trial; and trial court committed no error in denying such request.

1. CRIMINAL LAW — <italic>Trial — Terms of Court — Discharge — Postponement</italic><italic>— Delay — Statute</italic>. Under C.R.S. '53, 39-7-12, as amended, any person committed for any criminal matter and not tried on or before the expiration of the second term of court is not entitled to be discharged if he requested a postponement of his trial or other wise caused the delay thereof. 2. <italic>Trial — Delay — Dismissal — Action or Request — Rule</italic>. Under Rule 48 (b), Colo. R. Crim. P., if trial of defendant is delayed more than one year after filing of information, court will dismiss information unless the delay is occasioned by action or request of defendant. 3. <italic>Statute — Rule — Purpose</italic>. Purpose of C.R.S. '53, 39-7-12, as amended, and Colo. R. Crim. P. 48 (b), is to prevent dilly-dallying on part of district attorney of court in a criminal proceeding. 4. <italic>Trial — Delay — Caused and Occasioned — Discharge</italic>. Where delay and trial was caused and occasioned by action of counsel for defendant in seeking postponement of trial date, defendant was not entitled to discharge even though not brought to trial within two terms of court or within one year after information was filed.

1. MALICIOUS PROSECUTION — <italic>Malice — Motive — Offender — Justice</italic>. The element of "malice" in a malicious prosecution action is any motive other than a desire to bring an offender to justice. 2. <italic>Filing Criminal Complaint — Adequate Legal Remedy — Demand</italic><italic>— Claim of Ownership — Error — New Trial</italic>. Where defendant filed a criminal complaint to get possession of an old culvert which he thought belonged to him, but had adequate legal remedy for protection of his rights, if any, and yet made no demand on plaintiff for delivery of the culvert to him, nor did he ever make known to plaintiff that he claimed to be its owner, there was no error in the trial for malicious prosecution resulting in verdict in favor of plaintiff which justified the granting of a new trial.

1. CRIMINAL LAW — <italic>Exclusion Rule — Invocation — Violation — Penalty</italic><italic>— Discretion of Trial Court</italic>. Whether the exclusion rule is in the first instance to be invoked, and, if invoked, what constitutes a violation thereof, and even if it be determined that there was a violation, what penalty should be imposed, are all matters resting in the sound discretion of the trial court. 2. <italic>Exclusive Order — Violation — Investigation — Error — Motion</italic><page_number>Page 508</page_number><italic>to Strike — Mistrial</italic>. Where, after it was suggested that there had been a possible violation of the court's exclusion order by police officer, and trial court then proceeded to explore the entire matter in depth, under the circumstances disclosed by the record the trial court neither abused its discretion nor committed error in concluding that police officer's testimony was not subject to a motion to strike and that there should be no mistrial.