Volume 157 — Colorado Reports

1. STATUTES — <italic>Narcotic Drugs — Amendment — Severability — Error</italic>. Trial court erred in holding that amendment to "narcotic drugs" statute, C.R.S. 1963, 48-5-1 (14) (a), was not severable. 2. CONSTITUTIONAL LAW — <italic>Statute — Challenge — Person Adversely</italic><italic>Affected</italic>. No person is entitled to assail the constitutionality of a statute except as he himself is adversely affected. 3. DRUGS AND DRUGGISTS — <italic>Cannabis — Addicting Drugs — Arbitrary</italic><italic>and Unreasonable — Equal Protection — Due Process</italic>. Inclusion of cannabis in same category as addicting drugs such as coca leaves, opium, and other drugs more potent in destructive potential, is not so arbitrary and unreasonable as to deny defendants equal protection of the law and due process of the law. 4. CONSTITUTIONAL LAW — <italic>Legislative Classification — Reasonable —</italic><italic>Basis — Test</italic>. A legislative classification is constitutional which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved. 5. DRUGS AND DRUGGISTS — <italic>Cannabis — Addiction — Classification —</italic><italic>Narcotic Drugs — Police Powers</italic>. Differences of opinion as to whether cannabis causes physical or psychological addiction are not material in determining what drugs may be included within<page_number>Page 60</page_number> the classification of "narcotic drugs" in an exercise of police powers by a state. 6. <italic>Evidence — Regulation</italic>. Evidence presented before trial court left no doubt that cannabis is a dangerous drug and that it should be regulated. 7. CONSTITUTIONAL LAW — <italic>Cannabis — Statute — Narcotic Drugs —</italic><italic>Police Power — Legislature — Classification — Equal Protection —</italic><italic>Due Process</italic>. Inclusion of cannabis in statute prohibiting traffic in narcotic drugs was a proper exercise of police power by legislature; it did not amount to an unreasonable classification nor deny equal protection or due process of law. 8. <italic>Conviction — Sentence — Cruel and Unusual — Justiciable Question</italic>. Until some person has been convicted of a crime and a sentence has been imposed which is then asserted to be "cruel or unusual" there is no justiciable question presented. 9. CRIMINAL LAW — <italic>Punishment — Crime — Determination by Legislature</italic>. Generally, matter of punishment for commissions of crime is a matter for determination by legislature. 10. <italic>Punishment — Maximum and Minimum — Cruel or Unusual — Determination</italic>. Where there is a wide spread between minimum and maximum punishment whether any particular sentence is cruel or unusual is matter to be determined under all facts and circumstances surrounding each offense. 11. CONSTITUTIONAL LAW — <italic>Cruel or Unusual Punishment — Actual</italic><italic>Sentence — Future Time</italic>. Until defendants have actually been sentenced in a "cruel or unusual" manner they cannot be heard to say that they or some other person might at some future time be subjected to "cruel or unusual" punishment.

1. OIL AND GAS — <italic>Operator — Mining Lease — Farmout Agreement — Rental</italic><italic>Payment — Lessee — Reimbursement — Operating Agreement</italic>. Where operator of oil and gas mining lease completed the only well which was drilled under the farmout agreement, and rental payments by lessee were made before any<page_number>Page 87</page_number> well was ever completed, held, under terms of farmout agreement lessee was entitled to reimbursement for amount paid; operating agreement as it pertained to rentals could not come into effect until operator elected to drill at least one other well. 2. CONTRACTS — <italic>Presumption — Construction — Legal Effect</italic>. It is presumed that each part of a contract has a purpose, and a construction which gives legal effect to every part thereof will be adopted. 3. APPEAL AND ERROR — <italic>Judgment — Proper Grounds — Erroneous Reason —</italic><italic>Conclusion — Reversal</italic>. Where proper grounds are shown to exist, which would compel the entry of the judgment, the fact that the trial court assigned an erroneous or insufficient reason for its conclusion does not warrant a reversal.

1. CRIMINAL LAW — <italic>Appeal and Error — Motion — Judgment of Acquittal</italic><italic>— Jury</italic>. Trial court did not err in denying defendant's motion for judgment of acquittal and in submitting case to the jury. 2. <italic>Sufficiency of Evidence — Circumstantial Evidence</italic>. Evidence was legally sufficient to support jury's determination that defendant was guilty of the variety of crimes with which he was charged notwithstanding the fact that it was circumstantial. 3. WORDS AND PHRASES — <italic>Expert — Definition</italic>. An expert is one who has superior knowledge of a subject and is therefore able to afford the tribunal having the matter under consideration a special assistance, and his knowledge may have been acquired by professional, scientific or technical training or by practical experience in some field of human activity, conferring on him an especial knowledge not shared by men in general. 4. CRIMINAL LAW — <italic>Appeal and Error — Qualification of Expert —</italic><italic>Abuse of Discretion</italic>. A decision of a trial court as to the qualification of an expert is never reversed except in cases of abuse. 5. <italic>Opinion of Expert — Weight — Jury</italic>. The weight to be given the opinion of an expert is a matter to be ultimately determined by the jury.

1. GUARANTY — <italic>Evidence — Officer of Bank — Official Capacity —</italic><italic>Notes</italic>. Record conclusively shows that executive vice president and cashier of forwarding bank while acting in his official capacity endorsed certain notes and guaranteed their payment. 2. BILLS AND NOTES — <italic>Restrictive Endorsement</italic> — An endorsement on a promissory note which reads: "Pay to the order of any Bank, Banker or Trust Co." does not constitute a restrictive endorsement. 3. <italic>Restrictive Endorsement — Statute</italic>. Statute (1960 Perm. Supp., C.R.S., Section 14-18-5[2]) designed only to govern collection items between banks was not intended to change the well established rules of negotiable instruments pertaining to restrictive endorsements. 4. BANKS AND BANKING — <italic>Loan — Borrower — Limitation — Notes —</italic><italic>Warehouse</italic>. Statute (1960 Perm. Supp., C.R.S., Section 14-16-9[11]) limits the amount which can be loaned to any one borrower to 40% of capital and surplus where notes are secured by warehouse receipts. 5. <italic>Arrangement — Endorsement — Guaranty — Loan — Enforceability</italic><italic>— Statutory Maximum — Public Policy</italic>. In an arrangement between forwarding bank and correspondent bank which had agreed to participate in loan to borrower as a result of which forwarding bank endorsed certain notes of borrower and guaranteed their payment to correspondent bank with<page_number>Page 264</page_number> regard to a loan in excess of that which it was authorized by law to incur, held, such an arrangement was contrary to public policy and unenforceable to the extent that forwarding bank was made liable for loan in excess of statutory maximum, and corresponding bank's action in charging forwarding bank's account for amount of loan in excess of statutory maximum cannot therefore be justified. 6. <italic>Economic Security — Public — Regulation — Police Power</italic>. The business of banking bears such a relation to the economic security of the public as to be a proper subject of regulation by the state in the exercise of its police power. 7. <italic>Loans — Limitation</italic>. The banks of this state do not have a free rein regarding the loans which they may undertake. 8. <italic>General Assembly — Limitations — Depositors — Stockholders</italic><italic>— General Public</italic>. The General Assembly has set forth certain limitations beyond which banks cannot go and nothing is left to the banker's discretion in this regard; the interests of depositors, stockholders and general public command that these limitations be observed. 9. <italic>Policy — General Assembly — Evasion — Indirection</italic>. The policy declared by the General Assembly with reference to banks cannot be evaded by indirection. 10. <italic>Policy of Law — Violation — Secret Arrangement — Distinction</italic>. No realistic distinction exists between a secret arrangement whereby the policy of the law is violated and one which, while done openly, also violates the law. 11. <italic>Excessive Loan — Correspondent Bank — Excess — Default</italic>. When bank is faced with prospect of an excessive loan it can still utilize the services of a correspondent bank, provided that it does not become liable for the excess in the event of the marker's default. 12. <italic>Borrower — Defense — Action by Bank — Excessive Loan</italic>. Borrower is not afforded a defense to an action by a bank on an excessive loan. 13. <italic>Testimony — Executive Vice President — Plaintiff Bank — Knowledge</italic><italic>— Beans — Warehouse Receipts — Matter of Law — Inquiry</italic>. Testimony of executive vice president and cashier of plaintiff bank, that he had no knowledge or reason to believe that beans which were the subject of warehouse receipts were not in existence at time receipts were given, affords no basis for holding, as matter of law, that he had knowledge of the<page_number>Page 265</page_number> non-existence of commodities or knowledge sufficient to charge him with duty of further inquiry. 14. APPEAL AND ERROR — <italic>Inference — Testimony — Questions of Fact</italic><italic>— Trial Court — Jury</italic>. Inferences to be drawn from testimony of executive vice president and cashier of plaintiff bank were questions of fact and within province of jury and not the trial court; hence trial court erred in holding that there were no disputed questions of fact to submit to the jury. 15. JUDGMENT — <italic>Mathematical Error — Amount of Judgment — Correction</italic>. Trial court directed to correct mathematical error concerning amount of judgment where it erroneously computed balance due to promissory notes involved.

1. CRIMINAL LAW — <italic>Instructions — Nondirection — Error</italic>. Mere nondirection by the court is not error unless specific instructions good in point of law are requested and refused. 2. <italic>Review — Questions Not Raised — Prejudicial Error — Consideration</italic><italic>of Justice</italic>. Although Supreme Court may, and sometimes does, consider questions which were not raised in the trial court, it will not act except in those cases in which it is satisfied that a seriously prejudicial error was made and that justice requires such consideration. 3. ROBBERY — <italic>Appeal and Error — Facts — Inferences — Definition —</italic><italic>Instructions — Jury</italic>. Record discloses an abundance of facts, together with inferences which might be drawn therefrom, to justify finding that crime was aggravated robbery as that offense<page_number>Page 321</page_number> was correctly defined by instructions to the jury; hence there was sufficient evidence to warrant submission of question of aggravated robbery to jury. 4. <italic>Circumstances — Jury Question — Conclusive — Review</italic>. Where circumstances presented a jury question, finding of jury as to the commission of the crime of aggravated robbery by defendant is conclusive on review.

1. DIVORCE — <italic>Custody Order — Modification — Changed Conditions —</italic><italic>Initial Order — Unknown Facts</italic>. The general rule is that once a custody order has been duly entered it should not thereafter be modified or changed unless conditions have themselves changed since the initial order was made or unless material facts previously unknown have later been disclosed. 2. <italic>Custody Order — Unknown Events — Fraud and Concealment —</italic><italic>Modification</italic>. Evidence of events which occurred prior to original custody order, unless such were unknown to trial court at time original order was entered or unless trial court was in some fashion imposed upon through fraud and concealment, may not be the basis for a modification of the earlier custody order. 3. <italic>Custody — Visitation — Prevention — Hiding and Secreting</italic><page_number>Page 364</page_number><italic>— Modification</italic>. Mere fact that ex-wife sought to prevent ex-husband from visiting children by hiding them and secreting their whereabouts was not sufficient basis for modification of decree so as to give ex-husband custody of children. 4. <italic>Custody — Changed Circumstances — Evidence — Best Interests</italic>. Ex-husband failed to produce evidence of such changed circumstances as would justify trial court in changing custody of the two minor children from his former wife to himself; he produced nothing to show that such change would really be in the best interests of the two children.