Volume 158 — Colorado Reports

1. <bold>CONTEMPT.</bold> — <italic>Grand Jury — Witness — Presence of Court — Blanket</italic><italic>Refusal — — Agreement to Answer — Error.</italic> Where record in criminal matter indicated that witness in the presence of the court did not make a blanket refusal to answer any and all questions which had been or might be asked of him in the grand jury room, but rather agreed to answer, if ordered, held, trial court erred in adjudging witness in contempt. 2. <bold>GRAND JURY.</bold> — <italic>Contempt — Court — District Attorney — Refusal to Answer.</italic> The mere fact that witness before a grand jury declines to answer a question propounded to him by the District Attorney does not in and of itself constitute contempt, be it of the grand jury or the court; for declination to answer under certain circumstances may be quite proper. 3. <bold>WITNESSES.</bold> — <italic>Grand Jury — Ordered to Answer — Contempt — Command of</italic><italic>Court.</italic> When a witness is ordered to answer a question which he has theretofore declined to answer before the grand jury, he is then confronted with a clear-cut choice; either return to the grand jury and answer the question, or continue in his refusal to answer and thereby subject himself to a finding of contempt based on his refusal to obey the command of the court that he answer. 4. <bold>CONSTITUTIONAL LAW.</bold> — <italic>Rights — Federal — State.</italic> The several rights contained in the Federal and State Constitutions are bestowed upon all. 5. <italic>Witness — Right — Self-Incrimination.</italic> A witness is possessed of a constitutional right not to incriminate himself.<page_number>Page 17</page_number>

1. <bold>PRISONS.</bold> — <italic>Jailer — Warden — Sheriff — Breach of Duty — Prisoner —</italic><italic>Liability.</italic> A jailer or warden or sheriff may be liable for an injury proximately resulting to a prisoner from a breach of duty with respect to such prisoner. 2. <bold>NEGLIGENCE.</bold> — <italic>Evidence — Appeal and Error.</italic> Trial court was correct in its conclusion that the evidence offered by the plaintiff failed to establish any negligence on the part of the defendant which proximately caused the death of plaintiff's husband. 3. <bold>SHERIFFS AND CONSTABLES.</bold> — <italic>Events — Anticipation — Risk.</italic> A sheriff cannot be expected to guard against events which are not reasonably to be anticipated, or are so unlikely that the risk would commonly be disregarded.

1. <bold>HABEAS CORPUS</bold> — <italic>Insane Person — Restoration to Reason — Adjudication.</italic> An adjudication that an insane person has been restored to reason cannot be had in habeas corpus proceedings. 2. <italic>Burden — Petitioner — Facts — Relief.</italic> In habeas corpus proceeding burden rested upon petitioner to allege facts entitling him to relief. 3. <bold>HOMICIDE</bold> — <italic>Executive Order — Compliance with Statute — Governor —</italic><italic>Penitentiary — State Hospital — Presumption.</italic> In absence of allegations on part of petitioner raising issues concerning sufficiency of executive order or whether Governor had complied with statute authorizing transfer to penitentiary of inmate committed to state hospital following his adjudication of not guilty of charge of first degree murder by reason of insanity, held, presumption of regularity sustains the executive order.

1. <bold>ROBBERY</bold> — <italic>Aggravated Robbery — Statute.</italic> Under C.R.S. 1963, 40-5-1(2)(b) aggravated robbery is established if in the perpetration of such robbery the offender is armed with a dangerous weapon with intent, if resisted, to kill, maim or wound the person robbed or any other person. 2. <italic>Aggravated Robbery — Victim — Any Other Person — Statutes.</italic> Under the statute, it is not essential that the bandit must demonstrate an intent to kill, maim or wound the victim of the holdup; the significance of the statutory language "or any other person" is most apparent in the instant case. 3. <italic>Testimony — Loaded Weapon — Intent — Lesser Offense — Appeal and</italic><italic>Error.</italic> Where the uncontroverted testimony disclosed that defendant did use a loaded weapon in his gunfight with two police officers with the intent to kill, maim or wound them or one of them while robbery was in course of completion by escape with loot, held, specific intent of defendant was conclusively shown, and court committed no error in refusing to instruct upon the lesser offense, for under the evidence defendant was either guilty of aggravated robbery or he was not guilty.<page_number>Page 269</page_number> 4. <bold>CRIMINAL LAW</bold> — <italic>Guilty by Reason of Insanity — Refusal — Question —</italic><italic>Court.</italic> Where it affirmatively appeared that defendant in positive terms refused to enter a plea of not guilty by reason of insanity, there was therefore nothing before the court which at any time needed to raise any question whatever concerning the mental capacity of defendant.

1. <bold>LICENSES</bold> — <italic>Isolated Transaction — Use Tax — Sales Tax — Payment.</italic> Contractor, who purchased for use in its construction work automotive equipment from seller in isolated transaction, was liable for use tax, where seller who was engaged in similar work was not a licensed vendor and no sales tax on transaction had actually been paid by either party. 2. <bold>TAXATION</bold> — <italic>Exemption Statute — Use Tax — Personal Property — Consumer —</italic><italic>Vendor — Sales Tax — Sale.</italic> C.R.S. '53, 138-6-34(1), the "exemption" statute, was intended to prevent the imposition of a "use" tax on tangible<page_number>Page 431</page_number> personal property in those instances where the consumer had actually paid to a licensed "vendor" the statutory sales tax due on the sale. 3. <bold>STATUTES</bold> — <italic>Construction — Duty of Court.</italic> In construing a statute it is the duty of the reviewing court to give consistent, harmonious and sensible effect to all its parts. 4. <bold>LICENSES</bold> — <italic>Unlicensed Seller — Isolated Transaction — Tax — Liability —</italic><italic>Statute.</italic> Unlicensed seller involved in isolated transaction of automotive parts was not a "vendor" of "retailer" within the meaning of C.R.S. '53, 138-6-2(6) and was not liable to state for payment of tax. 5. <bold>TAXATION</bold> — <italic>Payment — Consumer — Sales Tax — Use Tax.</italic> The obligation for the payment of the tax is upon the consumer whether the tax is called a "sales" tax or a "use" tax. 6. <bold>LICENSES</bold> — <italic>Sales Tax — Agents of State — Unlicensed Seller — Demand —</italic><italic>Purchaser.</italic> Payment of sales tax by purchaser to licensed retailers or vendors amounts to payment to state as they are viewed as state's agents for collection; but payment to unlicensed seller is not payment to state and provides no protection against demand by state upon purchaser for payment of tax. 7. <bold>MONEY RECEIVED</bold> — <italic>Tax — Failure to Remit — Recovery — Action.</italic> Purchaser who pays tax to unlicensed vendor who fails to remit tax to state may recover from defaulting vendor in an appropriate action.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Count — Identification — Personal</italic><italic>Knowledge — Offense — Rules.</italic> Where each count of two count information appearing on single page of printed and typewritten matter specifically identifies persons accused, including defendant, and affidavit at bottom of page states that affiant had personal knowledge that offense or offenses charged in information was or were committed, held, the affidavit was sufficient to meet the requirements of Rule 7, Colo. R. Crim. P. 2. <bold>SEARCHES AND SEIZURES</bold> — <italic>Motion to Suppress — Guns — Prejudice.</italic> Trial court did not err in failing to sustain motion to suppress evidence of guns which defendant contends were obtained through illegal search and seizure of automobile and that he was therefore prejudiced by fact that guns were actually seen by jury and shown to witnesses notwithstanding they were not admitted in evidence and jury was instructed to disregard their presence; any reference to guns in presence of jury could not possibly have prejudiced defendant under circumstances shown by record. 3. <bold>ROBBERY</bold> — <italic>Aggravation — Evidence — Guilt.</italic> Guilt of defendant of crime of aggravated robbery was overwhelmingly established by competent evidence.

1. <bold>HOMICIDE</bold> — <italic>Instruction — Traumatic Amnesia — First Degree Murder —</italic><italic>Second Degree Murder.</italic> Where as result of assault by defendant on porter at club, bartender, in coming to porter's aid, inflicted blow on defendant's head with blackjack causing defendant to shoot and kill bartender instantly, held, trial court's instruction as to traumatic amnesia, under circumstances of case, was properly limited to first degree murder. 2. <italic>Fracas — Blow on Head — Manslaughter — Criminal Responsibility.</italic> One who has precipitated fracas and as result has been hit on head and rendered semi-conscious or unconscious cannot maintain that he is not criminally responsible for any degree of homicide above involuntary manslaughter, or that he is not criminally responsible at all. 3. <italic>First Degree Murder — Express Malice.</italic> In order to make out first degree murder under Colorado statutes, there must be willful, deliberate and premeditated killing, <italic>i.e.</italic>, there must be express malice. 4. <bold>CRIMINAL LAW</bold> — <italic>Express Malice — Definition — Statute.</italic> C.R.S. 1963, 40-2-2 defines express malice as "that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof." 5. <italic>First Degree Murder — Express Malice — Traumatic Amnesia.</italic> First degree murder can never be committed by one who is incapable of bearing express malice, such as one truly suffering from traumatic amnesia. 6. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Elements.</italic> In prosecution for homicide, where evidence showed that defendant, before being struck on head<page_number>Page 486</page_number> by blackjack, had manifested wanton conduct bent on mischief and without any considerable provocation and with all of circumstances showing an abandoned and malignant heart, held, these elements supplied implied malice which is all that is necessary for murder in second degree. 7. <italic>Second Degree Murder — Voluntary Drunkenness.</italic> Voluntary drunkenness is not such condition as to render one mentally incapable of committing second degree murder. 8. <bold>CRIMINAL LAW</bold> — <italic>Voluntary Drunkenness — Accountability — Statute.</italic> The accountability of one who becomes drunk voluntarily is defined by statute,<italic>i.e.</italic>, C.R.S. 1963, 40-1-9. 9. <italic>Drunkness — Common Law — Statute.</italic> C.R.S. 1963, 40-1-9 is simply declaratory of the common law; it provides, in essence, that drunkenness will not be an excuse for any crime where only the general intent is necessary for its commission. 10. <bold>HOMICIDE</bold> — <italic>Second Degree Murder — Intoxication — Intent — Instruction.</italic> One who voluntarily drinks himself into unconsciousness intends whatever foreseeable consequences or inevitable results of such intoxication are and that intent is sufficient to supply general intent for second degree murder, hence, instruction given by court with reference to defendant's asserted defense of drunkenness in relation to homicide was quite proper. 11. <italic>Appeal and Error — Instruction — Self-Defense — Prejudice.</italic> In prosecution for homicide, assignment of error which challenged instruction given by court on issue of self-defense was without merit; under facts defendant was not entitled to instruction on self-defense, hence, could claim no prejudice even if instruction was erroneous. 12. <bold>CRIMINAL LAW</bold> — <italic>Discretion of Court — Rebuttal — Admissibility.</italic> Trial court has discretion as to the admissibility of rebuttal testimony, and did not abuse its discretion in determining doctor's testimony to be properly admissible in rebuttal regarding likelihood of defendant actually suffering from traumatic amnesia. 13. <bold>HOMICIDE</bold> — <italic>Status of Defendant — Evidence — Admissibility — Appeal and</italic><italic>Error.</italic> In prosecution for homicide, trial court did not err in admitting in evidence testimony that defendant had been told not to come into club where homicide occurred even though it did not permit testimony as to previous assault there on waitress; it limited evidence merely for purpose of establishing defendant's status in club.<page_number>Page 487</page_number>

1. <bold>EXECUTORS AND ADMINISTRATORS</bold> — <italic>Answer — Laches or Estoppel — Rule —</italic><italic>Salary — Teacher — Defenses — Appeal and Error.</italic> Where defendant's answer failed affirmatively to plead laches or estoppel in action brought by administratrix to recover salary differential on behalf of estate of deceased teacher, such defenses having been first urged upon court orally at trial, held, not having been pled, as required by Rule 8(c), R.C.P. Colo., trial court erred in considering such defenses. 2. <bold>PLEADING</bold> — <italic>Defenses and Objections — Rules — Waiver.</italic> Defenses and objections not presented as required by Colorado Rules of Civil procedure are deemed waived in accordance with Rule 12(h), R.C.P. Colo. 3. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Teacher — Tenure — Salary — Matter of</italic><italic>Law — Statutes.</italic> As matter of law and under "Agreed Statement of Facts" administratrix of estate of deceased teacher was entitled to recover full salary differential due deceased as a tenured teacher pursuant to C.R.S. '53, 123-18-5 then in effect; moreover, there was no showing by defendant district that 123-18-6 did not also protect him under the fifty per cent reduction provision. 4. <italic>Tenure Act — Teacher — District — Contract.</italic> Tenure act pertaining to teachers has the effect of a contract between teacher and district. 5. <italic>Teacher — Other Work — Salary Reduction — Schedules.</italic> With reference to relationship between tenured teacher and school district,<page_number>Page 584</page_number> though district could and did assign him to work other than teaching, it could not thereby reduce his annual salary; it had to pay him according to its adopted teacher schedules.