Volume 161 — Colorado Reports

1. <bold>CRIMINAL LAW</bold> — <italic>Accessory — Prerequisite — Guilt — Principal.</italic> When one is tried as an accessory to the crime, as a prerequisite to his conviction, it is necessary to prove the guilt of the principal. 2. <italic>Confession — Principal — Accessory — Admissibility — Purpose —</italic><italic>Jury.</italic> A confession made by the principal, out of the presence of the<page_number>Page 2</page_number> accessory, is admissible at the accessory's trial, not as evidence against the accessory but to establish the guilt of the principal, provided the jury is properly instructed as to this limited purpose. 3. <italic>Principal — Implication — Accessory — Admissibility.</italic> If the principal's statement implicates the accessory, that portion of the statement is not admissible, and only the portion that pertains to the principal's guilt may be admitted in evidence. 4. <bold>ABORTION</bold> — <italic>Statement — Implication — Conspiracy — Severance — Separate</italic><italic>Trial — Suppression — Evidence.</italic> In pre-trial motion by codefendant alleging that defendant had made written statement implicating him in crimes of abortion and conspiracy to procure abortion which statement was made out of his presence and for which he asked for severance and separate trial which court denied, <italic>held</italic>, Rule 14 did not require a separate trial, and there was therefore no reversible error in denial of motion for severance and denial of later motion to suppress the statement when it was offered in evidence. 5. <bold>CRIMINAL LAW</bold> — <italic>Statement — Obliteration — Lack of Prejudice — Appeal</italic><italic>and Error.</italic> Where trial court caused names of defendants to be obliterated from codefendant's written statement who was charged as principal in abortion case and over objection admitted deleted statement in evidence,<italic>held</italic>, no prejudice to codefendant having been shown by reason of the deletions, trial court committed no error in admitting deleted statement in evidence. 6. <bold>SEARCHES AND SEIZURES</bold> — <italic>Positive — Meaning — Affidavits — Property —</italic><italic>Place — Items — Location — Attitude — Rules.</italic> In determining meaning of word "positive" as used in Colo. R. Crim. P. 41(c) with reference to affidavits in support of search warrant, it is relevant to consider that most, if not all, the property claimed to have been used in operation and described in affidavit and in search warrant were found at "place to be searched," as the "positive statement of the victim" had described and the location, and upon which the affiant relied for his "positive" attitude. 7. <italic>Affidavits — Review — Warrants — Common Sense — Realism — Test.</italic> In reviewing affidavits made in support of applications for search warrants courts should not give them unduly technical and restrictive reading, but such must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion.<page_number>Page 3</page_number> 8. <italic>Affidavit — Warrant — Justification — At Any Time — Legality —</italic><italic>Items — Admissibility — Evidence — Rules.</italic> In prosecution for abortion and conspiracy to procure an abortion, affidavit of particular person for a search warrant for the property and at location named therein justified execution of search warrant "at any time" within meaning of Colo. R. Crim. P. 41(c); the search warrant and search and seizure under its authority were legal and valid and the property described in warrant and items seized thereunder were properly admitted into evidence. 9. <bold>CONSPIRACY</bold> — <italic>Meeting — Agreement — Necessity — Proof — Inferences —</italic><italic>Facts and Circumstances — Sufficiency — Jury.</italic> It is not necessary to show a meeting or an agreement in words or writing between co-conspirators, or principal and accessories to commit the crime charged, in order to prove conspiracy; such may be established by inferences from other facts and circumstances proved in the case, and the sufficiency of the testimony is for the jury to determine. 10. <bold>ABORTION</bold> — <italic>Conspiracy — Sufficiency of Evidence — Verdicts.</italic> In prosecution for abortion and conspiracy to procure an abortion, record reflects that there is ample evidence to sustain the verdicts of guilt.

1. <bold>CRIMINAL LAW</bold> — <italic>Evidence — Other Crimes — Relationship — Charge —</italic><italic>Admissibility</italic>. Ordinarily, in a prosecution for a particular crime, evidence which tends to show that the accused has committed other crimes unrelated to the crime charged is irrelevant and inadmissible. 2. <italic>Collateral Conduct — Admissibility — Exception — Particular Crime</italic>. The admission into evidence of collateral conduct has been sanctioned as an exception to the general exclusionary rule when it tends to establish directly the particular crime. 3. <italic>Collateral Conduct — Admissibility — Guilty Knowledge — Connection</italic>. The admission into evidence of collateral conduct has been approved when it proves guilty knowledge where such is an element of the offense; but before such evidence may be used for such purpose there must be a direct connection between the particular acts and the crime charged. 4. <italic>Joy Riding — Ambiguous Statement — Relevancy — Materiality —</italic><italic>Admissibility</italic>. In prosecution for joy riding, where trial court admitted into evidence statement made by defendant to police officer, to wit, "this is my third fall within five years," to prove guilty knowledge of the crime charged, <italic>held</italic>, the statement, being ambiguous, was completely irrelevant and immaterial to any issue of the case and was therefore inadmissible. 5. <italic>Joy Riding — Ambiguous Statement — Evidence — Scienter — Prejudicial</italic><italic>Error — Appeal and Error</italic>. In prosecution for joy riding, where trial court raised an ambiguous and irrelevant statement to the dignity of<page_number>Page 77</page_number> competent evidence on the issue of scienter, <italic>held</italic>, the error in admitting such testimony in the first instance was compounded into prejudicial error when the jury was told by the court that defendant;s statement could be used to show consciousness of guilt.

1. <bold>JUDGMENT</bold> — <italic>Validity — Ninety Day Period — Expiration — Statute</italic>. C.R.S. 1963, 37-4-23 expressly negates any inference that statute is intended to affect the validity of judgments rendered after the expiration of the ninety day period. 2. <bold>TRIAL</bold> — <italic>Statute — Constitution — Decision — Validity — Delay —</italic><italic>Judgment</italic>. Neither the statute nor the constitution in any way divests the trial court of jurisdiction to render a decision or affects the validity of the judgment rendered solely because of the lengthy delay between trial and judgment. 3. <italic>Delay — Judgment — Reversal — Sufficiency</italic>. The bare fact of delay between trial and judgment is not sufficient to warrant reversal of the judgment. 4. <bold>APPEAL AND ERROR</bold> — <italic>Fair Trial — Transcript — Evidence — Findings and</italic><italic>Conclusions — Delay</italic>. Since no transcript of the evidence has been presented, Supreme Court must assume that the findings of fact and conclusions of law are fully supported by the evidence and that the delay in no way deprived defendant of a fair trial free from prejudicial error. 5. <italic>Findings — Sufficiency — Sustention</italic>. If sufficient and supported by evidence, findings will be sustained. 6. <bold>TRIAL</bold> — <italic>Findings — Signature — Correctness — Responsibility</italic>. When the trial judge signs the findings, the responsibility for their correctness becomes his. 7. <italic>Findings — Sufficiency — Form — Submitted by Counsel</italic>. Findings, if otherwise sufficient, are not weakened or discredited because given in the form submitted by counsel.<page_number>Page 88</page_number> 8. <bold>APPEAL AND ERROR</bold> — <italic>Findings — Examination — Trial Judge — Correctness</italic>. On appeal, reviewing court will assume that trial judge examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be. 9. <italic>Findings — Inadequacy — Judgment — Reversal</italic>. It is only when the findings themselves are inadequate and do not indicate the basis for the trial court's decision that the judgment will be reversed. 10. <bold>TRIAL</bold> — <italic>Findings — Detail — Judge — Requirement</italic>. Trial judge is not required to assert in detail the negative of every rejected proposition as well as the affirmative of those which he finds to be correct when dealing with the findings. 11. <bold>APPEAL AND ERROR</bold> — <italic>Finding — Account Stated — Absence of Transcript —</italic><italic>Presumption</italic>. Absent a transcript of the trial, Supreme Court cannot say whether the evidence supports trial court's finding of an account stated; in such case it must therefore presume the finding to be correct. 12. <bold>TRIAL</bold> — <italic>Findings — Uncritical Adoption — Disapproval</italic>. Practice of<italic>uncritical</italic> adoption by trial judge of findings prepared by litigants is not approved. 13. <italic>Findings — Careful Study — Correctness — Adoption — Judge</italic>. If,<italic>after careful study</italic>, trial judge concludes that the findings prepared by a party correctly state both the law and the facts, then there is no good reason why he may not adopt them as his own. 14. <bold>APPEAL AND ERROR</bold> — <italic>Findings — Verbatim — Scrutiny — Weight</italic>. Where findings of trial court are verbatim those submitted by the successful litigant, Supreme Court will scrutinize them more critically and give them less weight than if they were the work product of the judge himself. 15. <italic>Findings — Review — Transcript — Evidence — Adequacy — Matter of</italic><italic>law</italic>. Where findings would have permitted an intelligent review had transcript been certified and issue presented as to whether the evidence supported such findings, <italic>held</italic>, under the circumstances reviewing court cannot hold that the findings were in and of themselves inadequate as a matter of law. 16. <italic>Delay — Judgment — Findings — Adoption — Changes — Reversible</italic><page_number>Page 89</page_number><italic>Error</italic>. Combination of delay in rendering judgment and adoption of submitted findings without material changes do not rise to the dignity of reversible error.

1. <bold>ELECTION OF REMEDIES</bold> — <italic>Rescission — Damages — Ruling of Court —</italic><italic>Propriety</italic>. Where trial court required plaintiffs to elect as between claim for rescission of contract and that based upon alleged breach of covenant and they relied upon the claims for damages, <italic>held</italic>, trial court ruled properly in requiring this election. 2. <bold>VENDOR AND PURCHASER</bold> — <italic>Measure of Damages — Fee — Money — Depreciation</italic><italic>of Land — Easement</italic>. The measure of damages where there is no failure to title to purchased land, but where part of the land is subject to an easement that cannot be satisfied by the payment of money, is the depreciation of the land from such cause or the difference in the value of the land with and without the easement. 3. <bold>DAMAGES</bold> — <italic>Realty — Burden of Proof — Testimony — Easement — Nominal</italic>. In action for damages pertaining to contract for purchase of realty, where burden of proof was upon plaintiffs and they offered no testimony tending in any manner to establish damages under applicable rule, <italic>held</italic>, under such circumstances, trial court correctly awarded nominal damages only.

1. <bold>BURGLARY</bold> — <italic>Direct Evidence — Circumstantial Evidence — Proof</italic>. Burglary, like many other covert type crimes, is seldom provable by direct evidence of actual breaking and entering, but may be established by circumstantial evidence. 2. <italic>Proof — Stolen Goods — Possession — Accused — Conviction</italic>. Proof that a burglary was committed, and that goods were then and there stolen, and shortly thereafter found in the possession of the accused will sustain a conviction. 3. <bold>CRIMINAL LAW</bold> — <italic>Voluntary Testimony — Credibility — Issue</italic>. Where a defendant voluntarily testifies during trial his credibility thereupon becomes an issue in the case. 4. <bold>WITNESSES</bold> — <italic>Admission — Felony — Conviction — Evidence — Instructions —</italic><italic>Credibility — Statute</italic>. Where defendant admitted on cross-examination that he had been convicted of a felony, <italic>held</italic>, such evidence, limited by the court's instructions to the jury, was for the purpose of affecting his credibility and clearly within the ambit of C.R.S. 1963, 154-1-1. 5. <bold>CRIMINAL LAW</bold> — <italic>Charge — Admission — Proof — Relief</italic>. When a party admits a charge in a judicial proceeding, his opponent is relieved of the necessity of proving any fact so admitted. 6. <italic>Burglary — Larceny — Conspiracy — Circumstantial Evidence —</italic><italic>Sufficiency</italic>. Evidence in prosecution for burglary, larceny, and conspiracy to commit burglary and larceny, although largely circumstantial, was sufficient to sustain conviction of defendant.<page_number>Page 173</page_number>

1. <bold>CONSPIRACY</bold> — <italic>Co-conspirator — Dismissal — Before Trial — Contention —</italic><italic>Merit</italic>. There is no merit to defendant's contention that the dismissal of the charge of conspiracy against his co-defendant made mandatory a dismissal of the same charge against defendant. 2. <italic>Dismissal — Mandatory — Co-conspirator — Judgment of Dismissal —</italic><italic>Rule — Inapplicability — Before Trial</italic>. The dismissal of the charge of conspiracy against a co-defendant is made mandatory only where there is a judgment of acquittal or dismissal after jeopardy has attached; such rule, however, is inapplicable in instant case as the conspiracy count was dismissed against the co-conspirator <italic>before trial</italic>. 3. <bold>JUDGES</bold> — <italic>Bias and Prejudice — Change — Statute — Applicability — Appeal</italic><italic>and Error</italic>. There is no merit to defendant's contention that trial court erred in denying his motion for a change of judge because of bias and prejudice; actually, defendant failed to bring himself within the pertinent provisions of the applicable statute, C.R.S. 1963, 39-9-3, pertaining to those situations when a judge will be deemed incompetent. 4. <bold>CRIMINAL LAW</bold> — <italic>Sentence — Language — Uncertainly — Ambiguity — Appeal</italic><italic>and Error</italic>. Assertion of defendant that the language of the sentence is ambiguous and uncertain is without merit; reviewing court, after examination, finds no such vagueness, uncertainty or ambiguity which would render the sentences imposed void. 5. <bold>SEARCHES AND SEIZURES</bold> — <italic>Lawfulness — Vehicle — Arrest — Appeal and</italic><italic>Error</italic>. The record does not support defendant's assertion of error based<page_number>Page 178</page_number> upon an alleged unlawful search and seizure of the vehicle in which defendant was riding at the time of his arrest. 6. <bold>ARREST</bold> — <italic>Probable Cause — Circumstances — Justification</italic>. Reviewing court is of the view that probable cause did exist in light of all the circumstances and as such justified the arrest of the defendants. 7. <bold>SEARCHES AND SEIZURES</bold> — <italic>Lawful Arrest — Probable Cause — Evidence —</italic><italic>Admissibility</italic>. Where search being incident to lawful arrest based upon probable cause was reasonable and lawful, evidence obtained from such search is held to be competent and admissible. 8. <bold>CRIMINAL LAW</bold> — <italic>Fair Trial — Guilt — Evidence</italic>. Record indicates that defendant received a fair and just trial and his guilt was established overwhelmingly by competent evidence.

1. <bold>JUDGMENT</bold> — <italic>Cognovit Note — Notice — Motion to Set Aside — Defense —</italic><italic>Vacation — Trial on Merits</italic>. It is well-established that where a judgment is entered upon a cognovit note without notice to the defendant, and in apt time a motion is thereafter filed to set aside the judgment, and a meritorious defense is tendered by answer, it is the duty of the court to vacate the judgment and try the case on its merits. 2. <bold>COURTS</bold> — <italic>Original Proceeding — Review — Motion to Set Aside —</italic><italic>Judgment — — Cognovit Note — Notice — Conditions</italic>. An original proceeding is the proper vehicle to obtain review by Supreme Court of action of trial court denying motion to set aside judgment on cognovit note without notice to defendant, or even imposing conditions to the granting of such a motion to vacate. 3. <bold>PLEADING</bold> — <italic>Averment — Fraud — Circumstances — Particularity — Rules</italic>. R.C.P. Colo. 9(b) provides that in all averments of fraud the "circumstances constituting fraud" shall be stated with particularity. 4. <bold>BILLS AND NOTES</bold> — <italic>Answer — Meritorious Defense — Cognovit Note —</italic><italic>Ruling</italic>. Trial court was correct in its holding that the tendered answer did not present a meritorious defense to claim on cognovit note. 5. <bold>PLEADING</bold> — <italic>Answer — Dates — Places — Defense — Fraud — Sufficiency —</italic><italic>Rule</italic>. Colorado is in accord with view that failure of defendant to allege<page_number>Page 212</page_number> in answer precise dates upon which misrepresentations were made, or the exact places where they were made would not render such proposed defense of fraud legally insufficient providing such alleged fraud is pleaded with the "particularity" required by Rule 9. 6. <italic>Rule — Discharge — Prejudice — Motion to Vacate — Amended Answer</italic>. Rule in instant case is discharged without prejudice to right of defendant to file an amended motion to vacate and to tender an amended answer.

1. <bold>BURGLARY</bold> — <italic>Apartment — Entry — Permission — Theft — Television —</italic><italic>Dismissal — Appeal and Error</italic>. Where owner unlocked his apartment, as the work progressed, and gave defendant permission to enter and paint it, and where defendant was still engaged in the overall transaction when theft of owner's television set occurred, <italic>held</italic>, under such circumstances, the trial court acted properly in dismissing the charge of burglary against defendant.

1. <bold>NEGLIGENCE</bold> — <italic>Ladder — Premises — Authorization — Evidence — Prima Facie</italic><italic>Case — Recovery.</italic> Where plaintiff, employee of subcontractor who was to install a furnace in partially completed house, made use of ladder he happened to find on premises without knowledge of or authorization from defendant, prime contractor and owner of house, <italic>held</italic>, evidence does not make prima facie case to entitle plaintiff to recover from defendant.<page_number>Page 335</page_number> 2. <italic>Duty — Law — Breach — Damages.</italic> In action based upon negligence there must be a duty imposed by law upon a defendant and a breach by him of that duty with resultant damages before a negligence action can be maintained. 3. <bold>MASTER and SERVANT</bold> — <italic>Unauthorized Use — Equipment — Defect —</italic><italic>Responsibility for Damages.</italic> Where there is an unauthorized use of a piece of equipment by an employee of a subcontractor, the prime contractor has no responsibility for damages arising from the defect of such appliance.

1. <bold>DIVORCE</bold> — <italic>Change of Custody — Hearing — Master — Evidence — Trial Court</italic><italic>— Reversal of Findings — Appeal and Error.</italic> Where father filed motion for change of custody and master, after hearing, denied motion, and trial court later held informal conference in which he examined digest of evidence without any hearing or taking of additional testimony and thereupon reversed recommendation of master and ordered custody of minor children be placed with father, <italic>held</italic>, trial court erred under such circumstances in reversing findings of master and substituting its conclusion for his. 2. <italic>Custody Hearing — Question of Fact — Master — Conclusion.</italic> In custody hearing involving question of fact, insofar as it depends upon conflicting testimony, credibility of witnesses, and demeanor of witnesses, the master is the only one who can reach a conclusion in this area. 3. <italic>Custody Hearing — Testimony — Master — Unassailable — Error.</italic> In custody hearing before master, when there is any testimony consistent with the findings, it must be treated as unassailable except when "clearly erroneous." 4. <bold>COURTS</bold> — <italic>Findings — Master — Trial Court — Reviewing Court — Rule.</italic> R.C.P. Colo. 53(e)(2) binds district court to accept findings of master just as effectively as R.C.P. Colo. 52(a) binds reviewing court to accept findings of trial court, unless rejection is after hearing within its accepted meaning. 5. <bold>WORDS and PHRASES</bold> — <italic>Hearing.</italic> The word "hearing" contemplates not only<page_number>Page 410</page_number> the privilege to be present when the matter is being considered but the right to present one's contention and to support the same by proof and argument. 6. <bold>DIVORCE</bold> — <italic>Custody — Hearing — Meaning — Rule — Error.</italic> In custody proceeding, where trial court rejected master's findings, but failed to hold "hearing" in accordance with its accepted meaning or as contemplated by R.C.P. Colo. 53(3) (2), <italic>held</italic>, it erred. 7. <bold>REFERENCE</bold> — <italic>Master — Findings — Trial Court — Different Opinion —</italic><italic>Disturbation.</italic> Where a master has been appointed, his findings should not be disturbed merely because trial court is of a different opinion or dissatisfied with master's findings.