Volume 159 — Colorado Reports

1. <bold>CORPORATIONS.</bold> — <italic>Evidence — Checks — Admissibility — Incorporation —</italic><italic>Requirements — De Facto Powers — Use.</italic> Trial court was correct in refusing to admit certain exhibits into evidence where record showed that they were checks written before company was incorporated. 2. <italic>Standing — Claim — Pre-incorporation — Requirements — De Facto</italic><italic>Existence — Powers — Use.</italic> Corporation had no standing to make claim concerning checks written before incorporation where there was no showing that before incorporation it had met requirements necessary to clothe it with <italic>de facto</italic> existence or that it made <italic>bona fide</italic> attempt to incorporate before it actually did so and had attempted to use <italic>de facto</italic> corporate powers. 3. <bold>APPEAL AND ERROR.</bold> — <italic>Evidence — Checks — Exhibits — Admissibility.</italic> Trial court erred in rejecting certain checks as exhibits where defendant<page_number>Page 9</page_number> admitted on cross-examination that he had written these checks for his personal use. 4. <bold>CONVERSION.</bold> — <italic>Definition.</italic> The tort of conversion has been defined as the unauthorized act of dominion or ownership over the personal property belonging to another. 5. <bold>PLEADING.</bold> — <italic>Motion — Amendment — New Claim — Evidence — Accounting —</italic><italic>Discretion — Issues — Pre-trial Order.</italic> Where at close of evidence corporation moved for permission to amend its pleadings by adding claim for accounting which motion was denied, held, there was no abuse of discretion by trial court in denying movant's request as motion improperly called for addition of totally new claim beyond issues clearly set out in pre-trial order. 6. <bold>CORPORATIONS.</bold> — <italic>Burden of Proof — Officer — Liability — Taxes —</italic><italic>Withholding — Directors — Duty — Reviewing Court — Matter of Law.</italic> Reviewing court cannot hold as matter of law that record does not bear out trial court's finding that corporation failed to meet its burden of proof in attempt to hold officer liable for certain taxes which he allegedly failed to properly withhold; as record is devoid of any evidence showing that officer was charged by directors with such duty, he cannot be held liable for failure to so act. 7. <italic>Stock — Gift — Delivery — Evidence — Liability — Original Position.</italic> Where defendant admitted that he never received stock certificates and record indicates that although donor intended to make gift of stock in future there is no evidence that gift was ever completed by actual delivery, held, officer therefore not liable on note given for stock and parties are returned to their original position. 8. <italic>Stock — Title — Transfer — Statute.</italic> Title to corporate stock in Colorado can only be transferred as provided by statute. 9. <italic>Stock — Transfer — Statute — Exclusive — Other Means — Promise —</italic><italic>Future.</italic> Statutory methods pertaining to the transfer of stock are exclusive and any attempt or desire to convey stock by other means merely results in a naked promise to transfer ownership in the future. 10. <bold>GIFTS.</bold> — <italic>In Futuro — Promise — Enforceability.</italic> A bare promise to make a gift <italic>in futuro</italic> is not enforceable.

1. <bold>WORKMEN'S COMPENSATION.</bold> — <italic>Question of Law — Review.</italic> In compensation cases, defeated party may have question of law only reviewed by Supreme Court. 2. <italic>Evidence — Sufficiency — Award — Dispute — Legal Question — Statute.</italic> Where sufficiency of evidence to support award is disputed, Supreme Court is limited by statute to legal question of whether there is sufficient evidence to support findings, and not whether Commission has misconstrued its probative effect. 3. <italic>Award — Conclusive — Matters of Fact — Evidence — Inference.</italic> Award is conclusive upon all matters of fact properly in dispute before Commission, where supported by evidence, or reasonable inference to be drawn therefrom. 4. <italic>Work — Employee — Travel — Course of Employment — Personal.</italic> If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. 5. <italic>Evidence — Findings — Death — Accident — Course of Employment —</italic><italic>Contingent Purpose — Primary Necessity.</italic> Evidence sustained Commission's findings that employee had been engaged in delivering jeep to customer at time of fatal accident which task necessitated travelling, and that his death was result of accident which arose out of and in course of his employment; his own contingent purpose of going hunting had no part in creating necessity for travel; this was only formed because of primary necessity for travel.<page_number>Page 157</page_number>

1. <bold>MUNICIPAL CORPORATION.</bold> — <italic>Ordinance — Discrimination — Purpose —</italic><italic>Relief.</italic> If an ordinance, in its operation, is discriminatory or amounts to class or special legislation, irrespective of the purpose for which it is passed, it is the duty of a court to relieve from its illegal effect. 2. <bold>ZONING.</bold> — <italic>Ordinance — Business — Enclosure — Arbitrary —</italic><italic>Discrimination — Unconstitutionality.</italic> Enforcement of zoning ordinance purporting to require plaintiffs to conduct their business in its entirety within a completely enclosed structure would result, in instant case, in an arbitrary and unconstitutional discrimination against them in favor of others engaged in handling the same or similar merchandise. 3. <bold>CONSTITUTIONAL LAW.</bold> — <italic>Equal Protection — Test.</italic> Equal protection in its guaranty of like treatment to all similarly situated permits classification which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or<page_number>Page 342</page_number> persons dealt with and to the public purpose sought to be achieved by the legislation involved. 4. <bold>MUNICIPAL CORPORATIONS.</bold> — <italic>Ordinance — Exemption — Exclusion —</italic><italic>Unreasonable — Arbitrary.</italic> Exclusion of plaintiffs' business from the classification of those exempted from the operation of the ordinance was unreasonable and arbitrary and not based upon substantial differences having a reasonable relation to objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved.

1. <bold>CRIMINAL LAW.</bold> — <italic>Crime — Definition — Statute — Common Law.</italic> Where statute does not define a crime, but merely gives to it its common law name or designation, resort must be had to the common law to ascertain what constitutes the crime in question. 2. <italic>Crime — Statute — Common Law — Act — Intent.</italic> Colorado has statutorily adopted common law rule that a crime consists of the union of an act and intent. 3. <bold>ESCAPE.</bold> — <italic>Felony — Intent — Evasion — Justice.</italic> The felony of escape has as a necessary element the <italic>intent</italic> of the accused to evade the due course of justice. 4. <italic>Definition — Duty of Trial Court.</italic> In prosecution for felonious escape, trial court should have advised jury that an escape is the<page_number>Page 380</page_number> voluntary departure from lawful custody of a prisoner with intent to evade the due course of justice. 5. <bold>WORDS AND PHRASES.</bold> — <italic>Connotation — Mind — Act.</italic> The word "escape" connotes an attitude of mind as well as an act. 6. <bold>ESCAPE.</bold> — <italic>Legislature — Common Law Intent — Avoidance — Justice.</italic> Crime of felonious escape was meant by legislature to include that common law intent necessary for the commission of the offense — an intent to avoid the due course of justice. 7. <bold>CRIMINAL LAW.</bold> — <italic>Intent — Circumstances — Sufficiency.</italic> Intent may be shown by inference from all surrounding circumstances, if they are sufficient to prove this element beyond a reasonable doubt. 8. <italic>Rebuttal — Evidence — Detriment — Admissibility.</italic> Where defendant feels required to rebut facts or inferences from other evidence adduced at trial detrimental to his position, his offer should be allowed in as evidence. 9. <bold>ESCAPE.</bold> — <italic>Charge — Instruction — Voluntary — Design — Appeal and Error.</italic> Where trial court in charge to jury stated "that the definition of escape is the actual voluntary departure from lawful custody and that the word voluntary as used herein means done by design of the Defendant," held, court erred as simple volition or design is insufficient to constitute the crime. 10. <italic>Evidence — Drunkenness — State of Mind — Offense.</italic> In prosecution for crime of felonious escape, defendant was entitled to introduce evidence to the effect that he was too drunk to form the state of mind required for the commission of the offense. 11. <bold>CRIMINAL LAW.</bold> — <italic>Evidence — Mental Condition — Capacity — Intent —</italic><italic>Statute.</italic> Under C.R.S. 1963, 39-8-1, evidence of mental condition may be offered in a proper case as bearing upon the capacity of the accused to form the intent essential to constitute a crime. 12. <bold>ESCAPE.</bold> — <italic>Evidence — Alcoholic — Intent — Crime — Appeal and Error.</italic> Trial court erred in excluding evidence that defendant was an alcoholic, as he was entitled under the proviso of C.R.S. 1963, 39-8-1 to adduce evidence bearing upon his capacity to form the particular intent essential to constitute the crime of felonious escape with which he was charged. 13. <italic>Evidence — Physical Incapability — Appeal and Error.</italic> Court did not err in failing to admit evidence to the effect that defendant was physically incapable of making good an escape in view from evidence that<page_number>Page 381</page_number> defendant was found two or three miles from place of confinement. 14. <bold>CRIMINAL LAW.</bold> — <italic>Double Punishment.</italic> Contention of defendant that he is being subjected to double punishment is without merit.

1. <bold>LARCENY.</bold> — <italic>Motor Vehicle — Witnesses — Endorsement — Prior to Trial —</italic><italic>Appeal and Error.</italic> In prosecution for larceny of motor vehicle trial court committed no error in permitting district attorney to endorse witnesses immediately prior to trial. 2. <bold>INDICTMENT AND INFORMATION.</bold> — <italic>Larceny — Motor Vehicle — Witness —</italic><italic>Failure to Endorse — Appeal and Error.</italic> In prosecution for larceny of motor vehicle trial court committed no error warranting reversal of judgment by admitting testimony of a particular witness, even though he had not theretofore been endorsed as a witness on the information. 3. <italic>Witnesses — Endorsement — Discretion of Trial Court.</italic> Granting of leave to endorse witnesses on a criminal information is discretionary with the trial court. 4. <bold>WITNESSES.</bold> — <italic>Prejudice — Accused — Request — Continuance — Evidence —</italic><italic>Surprise — Absence — Appeal and Error.</italic> In absence of showing of prejudice to substantial rights of accused and in absence of request for continuance for reasonable time within which to meet evidence produced by "surprise" witnesses, there is no error. 5. <bold>LARCENY.</bold> — <italic>Automobile — Evidence — Consent.</italic> In prosecution for larceny of automobile, evidence was sufficient to show that owner of stolen automobile had not given consent to the taking thereof. 6. <italic>Ownership — Real — Possession — Property — Theft.</italic> In larceny cases ownership of the stolen item may be laid either in the real owner or in the person in whose possession the property was at the time of the theft.<page_number>Page 396</page_number> 7. <bold>RECORDS.</bold> — <italic>Official — Evidence — Ownership — Motor Vehicle — Larceny.</italic> Official records kept pursuant to law are competent evidence of ownership in prosecution for larceny of a motor vehicle; moreover, they are the best evidence of the facts required to be stated therein. 8. <bold>CRIMINAL LAW.</bold> — <italic>Cross-Examination — Witness — Identification —</italic><italic>Qualification — Circumstantial Evidence — Judgment.</italic> Where witness, upon cross-examination, qualified her identification of defendant as person she had seen driving car which answered description of vehicle that had been stolen, held, there was an abundance of evidence of a circumstantial nature to sustain judgment of conviction without testimony of this witness. 9. <italic>Jury — Credibility — Testimony — Witness.</italic> Jury is sole judge of credibility of testimony of witness.

1. <bold>JUDGMENT.</bold> — <italic>Summary Judgment — Question of Law.</italic> Trial court correctly determined that only a question of law was presented by the record and that it was proper to resolve the issue on motion for summary judgment. 2. <bold>TAXATION.</bold> — <italic>Redemption — Stockholder — Tax Sale — Presumption — Burden</italic><italic>of Proof.</italic> County treasurer performed quasi-judicial act in accepting stockholders' redemption of property from tax sale in behalf of corporation and approving stockholder as person entitled to make redemption; her conclusion of capacity to redeem carried presumption of validity which placed burden upon holder of tax certificate to prove the contrary. 3. <italic>Redemption — Real Property — Parties — Claim.</italic> Under C.R.S., '53, 137-11-3 real property sold for taxes may be redeemed by the owner, his agent, assignee, his attorney, or by any person having a legal or equitable claim therein. 4. <bold>CORPORATIONS.</bold> — <italic>Share of STock — Ownership — Claim — Taxation — Real</italic><italic>Estate — Redemption.</italic> Where husband of defendant did in fact own share of stock in corporation and held membership card issued in his name which was in possession of his widow, the defendant, who succeeded to his rights by right of inheritance, held, defendant was rightfully person having legal or equitable claim in real property in question and was therefore entitled to redeem real estate on behalf of corporation in which she was a stockholder.

1. <bold>BILLS AND NOTES.</bold> — <italic>purchaser — Knowledge — Bad Faith — Question of</italic><italic>Fact.</italic> Whether purchaser of negotiable instrument ha knowledge of such facts that his taking of instrument would amount to bad faith, is normally question of fact. 2. <italic>Gross Negligence — Knowledge — Suspicion — Failure to Inquire —</italic><italic>Recovery — Holder — Matter of Law.</italic> Neither gross negligence, nor knowledge of suspicious circumstances, nor failure to inquire into the consideration will of themselves, as a matter of law, prevent recovery by holder of negotiable paper who purchases it in ordinary course of business. 3. <italic>Notice of Infirmity — Defect in Title — Actual Knowledge — Bad</italic><italic>Faith — Statute.</italic> Under C.R.S. 1963, 95-1-56, to constitute notice of an infirmity in instrument or defect in title of person negotiating same, person to whom it is negotiated must have had actual knowledge of infirmity or defect, or knowledge of such facts that his action in taking instrument amounted to bad faith. 4. <italic>Bad Faith.</italic> Bad faith in fact, or mala fides, is the opposite of good faith, and consists in <italic>guilty knowledge</italic>, or <italic>wilful ignorance</italic>, showing a vicious or evil mind. 5. <bold>MORTGAGES.</bold> — <italic>Evidence — Note — Property — Bad Faith — Findings —</italic><italic>Review.</italic> Where evidence in record is sufficient to support determination of trial court that purchaser of note secured by parcel of property did not act in bad faith, held, reviewing court cannot, under such circumstances, disturb findings of trial court.<page_number>Page 464</page_number>

1. <bold>RAPE.</bold> — <italic>Statutory — Evidence — Support — Verdict — Guilt.</italic> Evidence introduced upon trial of defendant for statutory rape abundantly supported verdict of jury which found defendant guilty of crime charged. 2. <italic>Testimony — Admissibility — Whole Incident — Res Gestae — Appeal</italic><italic>and Error.</italic> Trial court did not err in permitting occupant of automobile in which defendant perpetrated rape on prosecutrix to testify that during commission of offense defendant's wife, who was also in automobile, had told defendant to get off as automobile was almost at wife's aunt's house; this evidence was admissible as part of the "whole incident," as part of the res gestae. 3. <bold>CRIMINAL LAW.</bold> — <italic>Venue — Evidence — Issue of Fact — Appeal and Error —</italic><italic>Special Instruction.</italic> No issue of fact with reference to venue of the<page_number>Page 486</page_number> action was made by the evidence warranting any special instruction on that subject, hence, trial court committed no error in this regard in refusing to give jury special instruction on proof of venue.

1. <bold>CRIMINAL LAW.</bold> — <italic>Indigent Defendant — Appointment of Counsel — Duty of</italic><italic>Court.</italic> If a defendant who is without funds desires the appointment of a lawyer to represent him in a felony case the court must do so. 2. <italic>Indigent Defendant — Appointed Counsel — Investigation — Consultation</italic><italic>— Reasonable Time.</italic> A court-appointed counsel representing an indigent defendant in a felony case must be allowed a reasonable time to investigate the case and to consult with and prepare his client's defense. 3. <italic>Appointed Counsel — Non-Support — Minors — Request for Continuance —</italic><italic>Denial — Abuse — Appeal and Error.</italic> Where court-appointed counsel for indigent defendant charged with felony of non-support of minor children asked for continuance on ground that he had not had adequate time in which to prepare defense for his client, which request was denied, held, in denying such request, court, abused its discretion and thereby committed reversible error. 4. <bold>INDICTMENT AND INFORMATION.</bold> — <italic>Endorsement of Witnesses — Failure —</italic><italic>Surprise — Rule — Appeal and Error.</italic> Though Rule 7(b)(1), Colo. R. Crim. P.<page_number>Page 495</page_number> requires endorsement of witnesses, the disregard thereof in instant case did not result in reversible error as defendant was not taken by surprise.

1. <bold>TAXATION.</bold> — <italic>Realities — Substance — Form.</italic> Taxation is concerned with realities, hence, in considering tax matters, substance and not form should govern. 2. <bold>STATUTES.</bold> — <italic>Legislators — Words — Use — Meaning.</italic> It is presumed that legislators use word in their natural, ordinary and commonly understood meaning. 3. <bold>BANKS AND BANKING.</bold> — <italic>Savings Deposit — Savings and Loan Association —</italic><italic>Commercial Bank — Characteristics.</italic> Generally, a savings deposit in a savings and loan association and one made in a so-called "commercial" bank have the same characteristics. 4. <italic>Deposits — Savings and Loan Association — Bank Accounts — Statute.</italic> Deposits in a savings and loan association come within the meaning of the term "bank accounts" as used in the statute. 5. <italic>Legislature — Savings Deposits — Commercial Bank — Savings and</italic><italic>Loan Institution — Distinction — Taxable Interest.</italic> Legislature did not<page_number>Page 563</page_number> intend to distinguish between savings deposits in a "commercial" bank and those in a savings and loan institution for purpose of determining taxable interest which passed in instant case.

1. <bold>SOCIAL SECURITY AND PUBLIC WELFARE.</bold> — <italic>Industrial Commission —</italic><italic>Statute — — Misinterpretation — Old Job — Better Job — Appeal and Error.</italic> Industrial Commission erroneously interpreted pertinent portion of statute when it ruled that claimant must actually have been on job performing services in new employment for at least three months before it could be adjudged that she had terminated old employment by "accepting a better," as plain meaning of words used in statute requires a different holding. 2. <bold>STATUTES.</bold> — <italic>Words and Phrases — Constitution — Meaning.</italic> Ordinarily, words and phrases found in constitutional and statutory provisions are to be construed by giving to them their familiar and generally accepted meaning. 3. <italic>Constitution — Strained — Unusual — Language — Clarity.</italic> Forced, subtle, strained or unusual definitions should never be resorted to where the language used in a constitutional or statutory provision is plain, its meaning clear, and no absurdity is involved. 4. <bold>SOCIAL SECURITY AND PUBLIC WELFARE.</bold> — <italic>Unemployment Compensation — Job —</italic><italic>Acceptance — Postponement — Commencement — New Employment.</italic> Under statute pertaining to award of unemployment compensation, if new job must be offered and accepted prior to date of quitting old job, act of "acceptance" of new job cannot be postponed until after work is actually commenced on new employment. 5. <bold>MASTER AND SERVANT.</bold> — <italic>Unemployment Compensation — New Employment — Date</italic><page_number>Page 581</page_number><italic>of Acceptance.</italic> Where employee accepted new employment on February 1, 1964, immediately prior to time she gave notice to her employer of termination of her employment, although she ceased her actual work on February 29, 1964, and commenced work for new employer on March 2, 1964, held, since she was compensated for services rendered through May 2, 1964 by new employer, new job lasted three months "from date of acceptance" within meaning of C.R.S. 1963, 82-4-8(3)(b)(v) thereby entitling her to unemployment compensation.