Volume 162 — Colorado Reports

1. <bold>ABORTION</bold> — <italic>Record — Illegality — Circumstantial Evidence — Adequacy.</italic> Record reflects adequate circumstantial evidence in instant case to sustain defendant's conviction of procuring an illegal abortion. 2. <italic>Illegality — Hands and Fingers — Instruction — Exclusion — Favorable</italic><italic>— Statute.</italic> In prosecution for procuring an illegal abortion, assertion of defendant that hands and fingers are not included in words contained in C.R.S. '53, 40-2-23, namely, "any instrument of whatsoever kind," and that jury should have at least been instructed on such theory, <italic>held</italic>, instruction actually given, by its very terms, might be said to exclude hands and fingers and as such would be considered more favorable to defendant than exact wording of statute. 3. <bold>CRIMINAL LAW</bold> — <italic>Instruction — More Favorable — Complain — Statute.</italic> A defendant cannot complain of an instruction which is more favorable to him than the strict wording of a statute. 4. <bold>ABORTION</bold> — <italic>Any Instrument — Statute — Limitation — Detached Physical</italic><italic>Object.</italic> The term "any instrument" as used in the abortion statute is not limited to a detached physical object; rather, anything foreign to a female's body which is unlawfully inserted, even fingers or hands, are instruments within the terms of the statute. 5. <italic>Instrument — Abortion Statute — Use — Broad Meaning — Illegal Means —</italic><italic>— Force — Miscarriage.</italic> The word "instrument" as used in an abortion statute, is not used in a narrow or technical sense but is broad enough to include any illegal means by which an external force is applied to produce a miscarriage.<page_number>Page 93</page_number> 6. <italic>Testimony — Limitation — Instruction — Jury — Unlawful — Abortion —</italic><italic>Appeal and Error.</italic> There is no merit to defendant's contention that it was error not to strike the entire testimony of a particular witness which was introduced only as to the stricken conspiracy charge; the effect of this testimony was limited when the jury was properly instructed that it was to consider <italic>only</italic> the charge of unlawful abortion. 7. <bold>WITNESSES</bold> — <italic>Medical — Expert Testimony — Endorsement — Appeal and</italic><italic>Error.</italic> There is no merit to defendant's contention that it was error to allow certain expert medical witnesses to testify since the prosecution had failed to endorse them. 8. <italic>Rebuttal — Endorsement — Prosecution.</italic> It is not necessary for the prosecution to endorse rebuttal witnesses. 9. <bold>CRIMINAL LAW</bold> — <italic>Evidence — Sanity — People — Necessity — Presumption —</italic><italic>Contrary.</italic> It is not necessary for the People to put on evidence of a defendant's sanity in their case in chief, since the presumption of sanity will operate until some evidence to the contrary is presented. 10. <italic>Medical Expert — Test of Insanity — Application — Knowledge —</italic><italic>Charge.</italic> There is no merit to defendant's argument that testimony of particular medical expert should have been stricken because he allegedly applied the wrong test of insanity; and further, because he did not know what crime defendant was charged with. 11. <italic>Expert Testimony — Conclusive — Jury — Weigh — All Others.</italic> Expert Testimony is not conclusive on the jury and must be weighed along with all other testimony. 12. <italic>Sanity — Insanity — Jury.</italic> Question of sanity or insanity is solely one for the jury. 13. <italic>Motion — Exhibit — Deletions — Review — Right — Denial. </italic>Where court refused defendant's motion that original or exhibit, from which portions had been deleted as irrelevant, be made part of record for review purposes even though defendant was not allowed to examine it at that time, <italic>held</italic>, in so doing court improperly denied defendant of a clear right. 14. <italic>Abortion — Statements — Excision — Original — Production.</italic> With reference to defendant's allegation of error pertaining to statement taken from prosecuting witness at hospital concerning her abortion, where neither typed original nor excised copy initially appeared in record but were later examined by reviewing court under its plenary power, <italic>held</italic>, there was<page_number>Page 94</page_number> neither impropriety in trial court's excision of certain portions of statement nor prejudice in failing to preserve original statement under facts presented. 15. <bold>CONSPIRACY</bold> — <italic>Abortion — Acquittal — Prima Facie — Evidence —</italic><italic>Cross-Error.</italic> With reference to assignment of cross-error by People because trial court at close of People's evidence granted defendant's motion for judgment of acquittal on conspiracy count, <italic>held</italic>, evidence presented by People, when considered in light most favorable to People, presented prima facie case against defendant on count of conspiracy to procure an abortion. 16. <italic>Inference — Proven Facts.</italic> Conspiracy may be established by inference from proven facts. 17. <bold>CRIMINAL LAW</bold> — <italic>Competent Evidence — Prosecution — Favor — Direction of</italic><italic>Verdict.</italic> Where there is some competent evidence favoring the prosecution on a charge, a verdict should not be directed.

1. <bold>BURGLARY</bold> — <italic>Dollar Bills — Testimony — Relevancy — Connection — Search —</italic><italic>Appeal and Error.</italic> Where testimony that four one hundred dollar bills were found on person of defendant was not connected in any way with burglary in question, had no relationship with it and had no relevancy to the issues in the case, <italic>held</italic>, trial court erred in permitting this evidence to be admitted. 2. <bold>SEARCHES AND SEIZURES</bold> — <italic>Fruits — Validity — Admissibility — Material</italic><italic>and Relevant — Issue.</italic> The fruits of a reasonable search are not admissible solely because they were found during a valid search; they must be material and relevant to the issue in the case. 3. <bold>CRIMINAL LAW</bold> — <italic>Instruction — Possession — Stolen Property — Theft —</italic><italic>Burglary — Honest Acquisition.</italic> Court erred in instructing jury that possession of stolen property recently after theft or burglary may be criminating circumstance tending to show guilt of person in whose possession it was found unless jury is satisfied by testimony adduced at trial that defendant came into possession of the property honestly.

1. <bold>EVIDENCE</bold> — <italic>Collision — Truck — Calf — Statement — Deletions —</italic><italic>Admissions Against Interest — Appeal and Error.</italic> Where plaintiff's truck collided with calf in road which caused him to lose control of vehicle and crash, and trial court deleted certain portions of deposition made by defendant's drivers which were offered to prove amount of time that defendant's drivers had had in which either to remove calf or to flag down approaching traffic after they had hit calf and knocked it into plaintiff's lane of traffic, <italic>held</italic>, trial court erred in refusing to admit challenged portions of deposition into evidence; even though hearsay, they were admissions against interest and admissible as exception to hearsay rule. 2. <italic>Witness — Contradiction — Proof — Truth — Mistake — Veracity.</italic> A party calling a witness is not precluded from proving the truth of a fact by other competent evidence in direct contradiction to what the witness called by him has testified; and this is so, not only when it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that the witness was generally unworthy of belief. 3. <italic>Parties — Statement — Identification — Declarations Against Interest</italic><italic>— Jury — Instructions.</italic> With regard to defendant's contention that the party or parties who made certain statements in question were not sufficiently identified so as to permit the declarations to be considered as admissions against defendant, <italic>held</italic>, under the circumstances,<page_number>Page 126</page_number> identification was sufficient to permit statements to go to jury under proper instructions upon the issue of identification. 4. <bold>NEGLIGENCE</bold> — <italic>Statute — Obstruction — Highway — Instruction — Hazard —</italic><italic>Removal — Warning — Time — Opportunity.</italic> The fact that there is a statute which makes it a criminal act to place an obstruction on the highway does not prohibit a court in a negligence action from instructing on the common law doctrine that one who moves an obstruction into someone else's path and thus creates a hazard to another must either remove the obstruction or warn others of the hazard if he has a reasonable time and opportunity to do so. 5. <bold>AUTOMOBILES</bold> — <italic>Contributory Negligence — Matter of Law — Inferences —</italic><italic>Jury.</italic> Defendant's assignment of cross-error, that there was contributory negligence as matter of law on part of plaintiff when his truck went out of control after striking calf which allegedly was lying in the road as a result of defendant's negligence, is without merit; actually, reasonable men could draw inferences either way from the testimony and under such circumstances the issue was one for the jury.

1. <bold>PUBLIC UTILITIES COMMISSION</bold> — <italic>Hauling — Ashes — Trash — Waste — Public</italic><italic>Utility — Regulation — Statute.</italic> Trial court erred in determining that those engaged in business of hauling ashes, trash and other waste material are not a public utility and therefore not subject to regulation by Commission; actually, businesses affected by trial court's ruling are a public utility and subject to regulation by Commission within purview of statute. 2. <italic>Property — Transportation for Hire — Matter — Removal — Households —</italic><italic>— Hauling — Dumps.</italic> The word "property" as set forth in C.R.S. 115-9-1(4)(a) was intended to and does embrace transportation for hire for matter and things which parties herein remove from various households and establishments and haul to nearby dumps. 3. <italic>Business — Trash Hauling — Regulation — Time.</italic> The business of trash hauling in which the parties herein are engaged has been subject to Public Utilities Commission regulations for a period of more than twenty years. 4. <italic>Certificates — Hauling of Trash — Property Right.</italic> Certificate of public convenience and necessity to haul trash constitutes valuable property right. 5. <bold>STATUTES</bold> — <italic>Interpretation — Construction — Legislature — Public</italic><italic>Officials — Public.</italic> In interpreting the statute in question we must look to the long-continuing contemporaneous construction of the act by the legislature, the public officials charged with its administration, and by the public itself. 6. <bold>PUBLIC UTILITIES COMMISSION</bold> — <italic>Amendment — Act — Legislature — Motor</italic><italic>Vehicle Carrier — Definition.</italic> By specific amendment in 1965, legislature expressly included in definition of "motor vehicle carrier" subject to regulation the following: "any motor vehicle used in serving the public in the business of transportation of ashes, trash, waste, rubbish, and garbage, to and from disposal sites, and in the course of operations"; and by so doing it did not change the law but merely clarified it.<page_number>Page 144</page_number>

1. <bold>SPECIFIC PERFORMANCE</bold> — <italic>Option — First Refusal — Portion — Whole Tract —</italic><italic>Sale.</italic> The holder of the option of first refusal on a portion only of a larger tract was not entitled to specific performance of the whole tract which owner desired to sell. 2. <bold>VENDOR AND PURCHASER</bold> — <italic>Whole Tract — Optional Part — Separate —</italic><italic>Optionee — Right to Purchase.</italic> A vendor, by acceptance of an offer to sell the whole tract may not be compelled to dispose of the optioned part separately from the property as a whole; and an attempt to sell the whole may not be taken as a manifestation of an intention or desire to sell the smaller optioned part so as to give optionee the right to purchase. 3. <bold>SPECIFIC PERFORMANCE</bold> — <italic>Lessees — Right — Portion — Tract — Option —</italic><italic>Sale — Whole.</italic> Where lessees have valid right of first refusal as to<page_number>Page 312</page_number> portion of lessor's tract, <italic>held</italic>, under such circumstances lessees were not entitled to compel specific performance of option when lessor attempted to sell whole tract.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Contemporaneous Objection Rule — Applicability.</italic> The contemporaneous objection rule applies to search and seizure issues. 2. <italic>Objection — Failure — Trial — Waiver.</italic> The failure to raise the objection of an illegal search and seizure by proper objection at the trial level tantamount to a waiver. 3. <bold>CRIMINAL LAW</bold> — <italic>Post Conviction Relief — Denial — Rule.</italic> The trial court properly denied the motion for relief under Rule 35(b).

1. <bold>FRAUD</bold> — <italic>Duty of Rescinding — Time Element — Knowledge of Facts.</italic> The duty of rescinding arises immediately upon acquiring knowledge of the substantial and material facts constituting the fraud. 2. <italic>Rescission — Duty to Act — Evidence — Requirement.</italic> It is not requisite that the defrauded party shall be acquainted with all the evidence constituting the fraud before the duty to act by way of rescission arises. 3. <bold>CONTRACTS</bold> — <italic>Rescission — Misrepresentation — Discovery — Announcement —</italic><italic>Adherence — Dominion — Loss of Right.</italic> Where a party desires to rescind upon the ground of misrepresentation or fraud, he must upon the discovery of the fraud announce his purpose and adhere to it; if he continues to treat the property as his own the right of rescission is gone, and the party will be held bound by the contract. 4. <italic>Buyers — Misrepresentation — Conduct — Law of Rescission — Actions —</italic><italic>— Record.</italic> Record reflects that actions of buyers of dairy farm, even after period when they claim they first had knowledge of misrepresentations, are totally irreconcilable with conduct required under law of rescission. 5. <italic>Fraud — Discovery — Rescission — Tender Back — Affirmance — Damages —</italic><italic>— Election — Prompt — Final.</italic> Where one is induced through false and fraudulent representations to enter into an agreement, upon discovery thereof, he has an election to either rescind, <italic>in which event he must</italic><page_number>Page 452</page_number><italic>tender back that which he has received</italic>, or he may affirm the agreement and maintain his action in damages for deceit, but his election must be<italic>promptly</italic> made and when once made is final. 6. <bold>STATUTES</bold> — <italic>Legislature — Judiciary — Penalty — Violation.</italic> It is for the legislature and not the judiciary to determine the penalty for violation of a statute. 7. <bold>SALES</bold> — <italic>Void — Voidable — Certificate — Brucellosis — Penalties —</italic><italic>Enlargement — Legislature.</italic> Reviewing court cannot declare void a contract entered into between parties which failed to provide a brucellosis certificate with the sale of the cattle in question since to declare void a contract entered into without such certificate would be enlarging upon the penalties provided by the legislature; the contract, at most, therefore was merely voidable. 8. <bold>ELECTION OF REMEDIES</bold> — <italic>Circumstances — Prior to Trial — Appeal and</italic><italic>Error.</italic> Under circumstances of instant case, trial court did not commit error in law when it required buyers of dairy farm to elect between their causes of action prior to trial.

1. <bold>QUIETING TITLE</bold> — <italic>Chain of Title — Proof — Findings — Sufficiency of</italic><italic>Evidence.</italic> In action to quiet title, record reflects sufficient evidence to sustain findings of trial court that plaintiff had established its unbroken chain of title to the land in question. 2. <bold>APPEAL AND ERROR</bold> — <italic>Findings of Fact — Disputed Evidence — Weight —</italic><italic>Review.</italic> On review, findings of fact resolving disputed evidence will be upheld unless it is clear from the record that they are manifestly against the weight of the evidence. 3. <bold>WATERS AND WATER COURSES</bold> — <italic>Accretion — Reliction.</italic> The doctrine of accretion and reliction applied in Colorado. 4. <italic>River Channel — Alteration — Sudden Change — Mechanical or Artificial</italic><italic>— Avulsion — Accretion.</italic> Evidence amply discloses that when river channel was altered it was not a slow and gradual change but a sudden<page_number>Page 507</page_number> change caused by mechanical or artificial means so as to constitute an avulsion rather than an accretion, hence, when such sudden change occurs there is no alteration in boundary line; it remains at location of river immediately prior to the change. 5. <bold>ADVERSE POSSESSION</bold> — <italic>Claim — Insufficiency of Evidence.</italic> Record reflects that trial court correctly found that there was insufficient evidence to establish a claim of adverse possession in the defendants. 6. <italic>Grazing Cattle — Unfenced Land — Sufficiency.</italic> The practice of grazing cattle on unfenced land is not of itself sufficient to clothe an adjoining owner with adverse possession. 7. <italic>Claim — Eighteen Year Statute — Seven Year Statute — Elapse of</italic><italic>Time.</italic> Record reflects that not enough time has elapsed to perfect an adverse possession claim in the defendants under either the eighteen year statute (C.R.S. '53, 118-7-1), or the seven year statute (C.R.S. '53, 118-7-8). 8. <bold>BOUNDARIES</bold> — <italic>Property — Description — Appeal and Error.</italic> Reviewing court is of the view that the property involved in instant action is not described in a legally satisfactory manner, hence, defendant's contention that trial court erred in failing to describe the boundary lines of property with definiteness and specificity is well taken.

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Annexation — Ownership of Land — Outside City</italic><italic>Limits — Border — Standing of Attack — Dismissal.</italic> Where none of plaintiffs in instant action own land within area included in annexation and zoning ordinances, but are merely landowners whose affected land lies outside city limits, <italic>held</italic>, the fact that their lands border the lands affected by the ordinances does not give them standing to attack the annexation, hence, action was properly dismissed. 2. <bold>ZONING</bold> — <italic>Regulations — Attack — Property Owners — Outside Territorial</italic><italic>Limits — Propriety.</italic> The validity of the manner in which zoning regulations are passed may not be attacked by owners of affected property which lies outside the territorial limits of the municipality imposing such zoning regulations. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Ordinances — Annexation — Zoning — Property —</italic><italic>Limits.</italic> Trial court properly dismissed suit to have annexation and zoning ordinances declared void where none of the opponents of such ordinances owned property within territorial limits of municipality imposing the ordinances. 4. <bold>ACTION</bold> — <italic>Annexation — Zoning — Findings — Defects — Dismissal.</italic> In suit by opponents of annexation and zoning ordinances to have ordinances declared void, findings of fact of trial court sufficiently advised<page_number>Page 594</page_number> opponents of defects in their action which required dismissal. 5. <bold>PLEADING</bold> — <italic>Amendment — Annexation — Zoning — Ordinances — Outside of</italic><italic>City — Situs.</italic> Trial court acted properly in refusing plaintiffs the opportunity to amend their complaint since situs of affected property, in suit to have annexation and zoning ordinances declared void, was outside corporate limits of city and no amendment of the complaint could change such situation.