Volume 163 — Colorado Reports

1. <bold>LARCENY</bold> — <italic>Bailee — Automobile — Chattel Mortgage — Power of Attorney —</italic><italic>Assignment of Title — Signature — Money — Evidence — Jury — Guilt.</italic> Where record reflects that victim left her automobile with defendant car dealer for disposal on consignment basis, and vehicle was mortgaged to bank by defendant and money obtained from loan was used to release security on another car, and where record further reflects that victim did not sign power of attorney nor assignment of title nor did she authorized anyone to execute papers for her and failed to receive any money for her car, <italic>held</italic>, evidence was sufficient to present to jury question of defendant's guilt on charge of larceny by bailee. 2. <bold>BAILMENT</bold> — <italic>Title — Auto — Dealer — Duty to Account.</italic> Where title to automobile remained with owner and vehicle was being held by defendant dealer for sale with duty to account for proceeds thereof, <italic>held</italic>, under such circumstances, agreement constituted a "bailment." 3. <bold>LARCENY</bold> — <italic>Bailee — Conversion — Consent — Will — Intent — Deprivation —</italic><italic>Elements.</italic> Conversion of property of another contrary to contract of bailment without consent and against will of owner with intent to deprive him of his property, satisfies all of the elements of the crime of larceny by bailee. 4. <bold>FORGERY</bold> — <italic>Instrument — Genuine — Legal Efficacy — Real or Apparent —</italic><italic>Test.</italic> Where alleged forged instrument was such that if genuine had no legal efficacy, real or apparent, offense of forgery was not established by the evidence and court should have directed verdict of not guilty as to that particular count. 5. <bold>CRIMINAL LAW</bold> — <italic>Larceny by Bailee — Forgery — Admission of Similar</italic><page_number>Page 21</page_number><italic>Transactions — Comments — District Attorney — Closing.</italic> In prosecution for larceny by bailee and forgery, reviewing court is of the view that there was no prejudicial error by reason of admission of other so-called similar transactions in the posture in which this matter came before jury; and neither were the comments of the district attorney, on the transaction in his closing argument, improper or prejudicial. 6. <italic>Jury — Determination — Intent — Crime — Accused — Capability.</italic> In order for a jury to make a determination of the necessary element of intent in the commission of a crime, it must be told that the accused must be capable of forming an intent. 7. <italic>Instruction — Intent — Sound Mind — Antiquated — Evidence —</italic><italic>Prejudice.</italic> Although antiquated, instruction on intent concerning how to recognize one of sound mind was not prejudicial even though there was no evidence introduced as to the sound mind of defendant.

1. <bold>AUTOMOBILES</bold> — <italic>Collision — Highway — Car — Truck — Personal Injuries —</italic><italic>Jury — Verdict — Negligence — Contributory.</italic> In action by truck driver against automobile driver to recover damages for personal injuries arising out of collision between car and truck on state highway, record reflects sufficient evidence to uphold jury's verdict in favor of defendant as to issues of negligence and contributory negligence. 2. <bold>EVIDENCE</bold> — <italic>Police Accident Report — Admissibility — Automobile —</italic><italic>Collision — Highway.</italic> Trial court correctly refused to admit into evidence properly certified copy of police accident report in personal injury action involving collision on state highway between car and truck. 3. <italic>State Documents — Authentication — Statute.</italic> C.R.S. '53, 52-1-16 deals with the authentication of official state documents and not with the competency or relevance of the documents themselves. 4. <italic>Fact — Knowledge — Reporting Officer — Hearsay — Statute.</italic> The word "fact" contained in C.R.S. '53, 52-1-16 refers to facts within the knowledge of the reporting officer or agent and cannot refer to hearsay statements or conclusions of others. 5. <italic>Official Documents — Admissibility — Test — Common Law — Competency.</italic> In the absence of a statute to the contrary, the rule is that<page_number>Page 137</page_number> "official documents" to be admissible in evidence must first be tested by common law principles of testimonial competency. 6. <italic>Writing — Hearsay — Bar — Removal.</italic> The mere writing down of hearsay does not remove the bar to its admission. 7. <bold>AUTOMOBILES</bold> — <italic>Instruction — Statute — Opposite Direction — Negligence</italic><italic>Per Se — Statute.</italic> Where court instructed jury in the exact wording of the statute pertaining to drivers of vehicles proceeding in opposite directions upon certain roadways (C.R.S. '53, 13-4-39), but refused to tell it that violation of the act was negligence per se, <italic>held</italic>, such refusal did not constitute error under factual circumstances of instant case. 8. <italic>Roadway — Narrow — Curving — Snow — Mud — Rockslide — Negligence</italic><italic>Per Se — Matter of Law — Wrong Side — Collision — Jury.</italic> Where roadway was narrow and curving with snow, mud and rockslide upon a portion of it, reviewing court cannot hold as a matter of law that it was negligence per se for defendant's motor vehicle to be found partially upon the wrong side of the road after the collision of the vehicles traveling in opposite directions; it was a jury question in such situation. 9. <bold>TRIAL</bold> — <italic>Instruction — Look — See — Visible — Request — Refusal —</italic><italic>Propriety.</italic> Trial court did not err in refusing plaintiff's requested instruction pertaining to a party who looks but fails to see what must have been plainly visible; it does not apply to facts of instant case and thus has no merit. 10. <bold>AUTOMOBILES</bold> — <italic>Instruction — Contributory Negligence — Collision —</italic><italic>Highway — Propriety.</italic> In action involving collision of motor vehicles traveling in opposite directions on narrow, curving, snowy and slushy state highway, trial court did not err in instructing on contributory negligence, since jury could, and did conclude that plaintiff was contributorily negligent, hence, defendant was entitled to an instruction on this issue. 11. <bold>COSTS</bold> — <italic>Travel — Attorney — Expenses — Discretion — Rules.</italic> Trial court did not err in refusing to allow travel and attorney expenses for the taking of depositions in instant case; this was a matter solely within the discretion of the trial court under R.C.P. Colo. 30(b).

1. <bold>LANDLORD AND TENANT</bold> — <italic>Right to Moneys — Lease — Three Pages — One</italic><italic>Instrument.</italic> In action between lessors and lessees involving right to balance of certain escrowed moneys paid by city in condemnation proceeding, where resolution of entire dispute hinges on legal interpretation to be given a three page written lease entered into by the parties, reviewing court is of the view that all three pages of lease constitute one instrument. 2. <italic>Termination — Conflict — Right of Lessors — Evidence.</italic> In lease containing conflicting provisions regarding termination, trial court correctly concluded that lessors wanted to and did retain right to terminate; especially, since the evidence demonstrated that both parties knew prior to signing that city was contemplating a taking of the property for public purposes. 3. <bold>CONTRACTS</bold> — <italic>Documents — Ambiguities — Intent — Construction.</italic> Written documents containing ambiguities or unclear language or meaning are to be constructed with reference to the intent of the parties. 4. <bold>EMINENT DOMAIN</bold> — <italic>Lease — Termination — Notice — Lessees — Right —</italic><italic>Proceeds — Condemnation.</italic> Where parties intend to provide for termination of lease by lessors in a certain manner and notice to terminate was<page_number>Page 226</page_number> properly given thereby terminating lease on a particular date, <italic>held</italic>, under such circumstances, lessees held no right or interest in property in question and were therefore not entitled to any portion of proceeds at subsequent date when condemnation of property by city took place.

1. <bold>DESCENT AND DISTRIBUTION</bold> — <italic>Affirmative Defenses — Petition to Set Aside</italic><italic>— Determination of Heirship — Fraud — Motion to Dismiss.</italic> Matters set forth in C.R.S. '53, 152-4-5, 118-7-15, 118-7-11 and 118-7-4 could be raised as affirmative defenses in answer to petition to set aside decree of determination of heirship on ground of fraud, but could not be properly considered on motion to dismiss such petition. 2. <italic>Determination of Heirship — Fraud — Sham — Res Judicata — Laches —</italic><italic>Motion to Dismiss — Affirmative Defenses.</italic> The points that petition to set aside decree if determination of heirship on ground of fraud was sham and frivolous, that the matter was res judicata, and that petitioners were guilty of laches could not properly be considered on motion to dismiss, even though they could be raised as affirmative defenses in an answer. 3. <bold>PLEADING</bold> — <italic>Motion to Dismiss — Complaint — Presumption — Conclusive.</italic> It is axiomatic that in ruling upon a motion to dismiss, all material allegations of the complaint are conclusively presumed to be true. 4. <bold>DESCENT AND DISTRIBUTION</bold> — <italic>Motion to Dismiss — Petition to Set Aside</italic><italic>— Decree of Heirship — Question of Law — Complaint — Question for</italic><italic>Determination.</italic> On motion to dismiss petition to set aside decree of determination of heirship on ground of fraud, it becomes question of law as<page_number>Page 246</page_number> to what legal right or obligations result from the facts alleged in the complaint, hence, sole question for determination on instant writ of error is does petition state facts sufficient to constitute a claim. 5. <italic>Notice by Publication — Determination of Heirship — Personal</italic><italic>Service — Names of Heirs — Statute.</italic> C.R.S '53, 152-4-2 providing for giving of notice by publication in a determination of heirship proceeding to all persons interested, and requiring personal service of notice on all persons who reside in state and are named in petition as heirs, imposes duty on petitioner to show as particularly as known the names of all heirs entitled to an interest. 6. <bold>FRAUD</bold> — <italic>Commission — Suppression — Suggestion.</italic> Fraud may be committed by the suppression of truth as well as by the suggestion of falsehood. 7. <italic>Liability — Test — Facts — Duty — Relationship — Trust or Confidence</italic><italic>— Knowledge.</italic> The test of liability for failure to disclose facts material to the transaction is some duty, legal or equitable, arising from the relation of the parties, such as that of trust or confidence, or superior knowledge or means of knowledge. 8. <italic>Duty — Disclosure — Failure — Fraudulent Concealment.</italic> When in the circumstances of a particular case a legal or equitable duty is present to disclose a material fact, failure to disclose it with intention to mislead or defraud is equivalent to fraudulent concealment of fact. 9. <bold>JUDGMENT</bold> — <italic>Relief — Decree — Claim — Assertion — Notice.</italic> A party is entitled to relief from an adverse decree on the ground of fraud where it appears that he could have asserted a valid claim in the proceedings in which the decree was entered had he received the required notice. 10. <italic>Decree — Setting Aside — Fraud — Ignorance — True Facts — Injury —</italic><italic>Without Neglect.</italic> In order to set aside a decree on the ground of fraud, it must appear that prevailing party in suit wherein decree was rendered contrived by fraud to keep complainant and court in ignorance of the true facts, whereby a wrong conclusion was reached and a positive injury was done to the party complaining, without neglect or inattention on his part. 11. <bold>FRAUD</bold> — <italic>Constituents.</italic> The constituents of fraud are: (1) a false representation of a material existing fact, or a concealment of a material existing fact, that in equity and good conscience should be disclosed; (2) knowledge on the part of the one making the representation that it is<page_number>Page 247</page_number> false; (3) ignorance on the part of the one from whom the fact is concealed; (4) that the representation or concealment was made or practiced with the intention that it be acted upon; and (5) resulting in damage.

1. <bold>CONTRACTS</bold> — <italic>Note — Bonus Demonstration Guarantees — Advertising</italic><italic>Agreement — Qualified — Systems — Illusory — Mutuality.</italic> In action involving contract, note, bonus demonstration guarantees and representative advertising agreement, where seller agreed to pay buyers specific sum for each of three groups of twelve <italic>qualified</italic> demonstrations of intercom, fire and burglar alarm systems made by seller to prospects whose names are furnished by buyers, <italic>held</italic>, in view of fact that promises in bonus demonstration guarantees were illusory and lacking in mutuality, agreement is therefore inoperative.

1. <bold>VENDOR AND PURCHASER</bold> — <italic>House — Process of Construction — Implied</italic><italic>Warranties — Suitable.</italic> Where a house in the process of construction is the subject of purchase there are implied warranties that the house is built in a workmanlike manner and is suitable for habitation. 2. <bold>APPEAL AND ERROR</bold> — <italic>Reviewing Court — Judgment — Findings —</italic><italic>Distribution.</italic> Reviewing court will not disturb a judgment predicated upon findings of the trial court.

1. <bold>MECHANICS' LIENS</bold> — <italic>Complaint — Notice — Posting — Nonliability —</italic><italic>Issue — — Objection — Midway — Trial — Late.</italic> In action to enforce mechanics' lien for work performed under contract with lessee, where complaint alleged that owner did not post notice of nonliability, and owner's answer which denied the allegation placed matter of posting in issue, <italic>held</italic>, objection midway through trial that posting had not been affirmatively pleaded in answer came too late. 2. <bold>WITNESSES</bold> — <italic>Owner — Improvements — Testimony — Posting — Notice of</italic><italic>Nonliability — Impeachment — Question — Trier of Facts.</italic> Whether witness who was president of corporation that owned real property on which improvements were made and who testified that he had posted an owner's notice of nonliability was impeached by conflicting testimony of workmen for decorators that they never saw any notice of nonliability posted on the property was a debatable question to be decided by the trier of facts. 3. <italic>Testimony — Weight — Court.</italic> Where the testimony of a particular witness was ruled competent, the weight to be accorded such testimony is a matter lying well within the province of the trial court.<page_number>Page 344</page_number> 4. <bold>EVIDENCE</bold> — <italic>Mechanics' Lien — Notice of Nonliability — Posting — Dates —</italic><italic>Lease — Admissibility.</italic> Notice of nonliability which owner claimed to have posted on premises involved in mechanics' lien proceeding and which bore date of November 1 and not November 9 when it was alleged to have been posted was properly received in evidence when witnesses testified that reason for November 1 date was that it was date of lease. 5. <bold>APPEAL AND ERROR</bold> — <italic>Review — Exception — Exclusion — Offer of Proof —</italic><italic>Witness — Objection — Testimony — Answer.</italic> Upon review, an exception to the exclusion of evidence must be predicated upon an actual offer of proof; and such offer is made by propounding a question to the witness and, upon objection thereto, then stating to the court what the testimony of the witness would be if permitted to answer. 6. <italic>Offer of Proof — Prejudicial — Inconsequential — Necessity.</italic> Offer of proof is necessary to enable reviewing court to determine whether error, if such it be, is prejudicial, or on the contrary is only inconsequential in nature. 7. <italic>Exclusion — Offer of Proof — Timely — Adequate.</italic> He who would obtain reversal of a judgment because of the exclusion of evidence offered by him must in connection therewith make a timely and adequate offer of proof.

1. <bold>HOMICIDE</bold> — <italic>First-Degree — Motion to Vacate — Disposition — Propriety —</italic><italic>Affirmance.</italic> In prosecution for first-degree murder, reviewing court is of the view that trial court's handling of defendant's motion to vacate judgment and sentence was eminently correct, hence, judgment and order denying the motion necessitates affirmance. 2. <bold>CRIMINAL LAW</bold> — <italic>Contentions — Heretofore Considered — Review — Writ of</italic><italic>Error — Repetition — Motion to Vacate.</italic> Contentions which have heretofore been considered by Supreme Court when defendant obtained review of judgment and sentence by writ of error are not to be considered again in a motion to vacate. 3. <bold>HOMICIDE</bold> — <italic>Jury — Qualification — District Attorney — Evidentiary</italic><italic>Hearing — Death Sentence — Approval and Error.</italic> Defendant's contention that it was error to permit the district attorney to qualify for jury for consideration of the death sentence is without merit, hence, trial court did not err in refusing to hold an evidentiary hearing in connection therewith.<page_number>Page 351</page_number> 4. <bold>JURY</bold> — <italic>Instruction — Refusal — Challenge for Cause.</italic> A prospective juror who announces in advance that he would not follow the instructions of the court is subject to a challenge for cause. 5. <italic>Death Sentence — Opposition — Challenge for Cause.</italic> A prospective juror who is conscientiously opposed to the imposition of the death sentence in any and every case is subject to a challenge for cause. 6. <italic>Death Penalty — Fair Trial — Qualifying Prospective Jurors.</italic> Defendant's right to a fair and impartial trial was not denied by qualifying prospective jurors in instant case on the death penalty. 8. <bold>HOMICIDE</bold> — <italic>Pre-Trial Publicity — First-Degree Murder — Fair Trial.</italic> Reviewing court is of view that pre-trial publicity as it related to the actual trial of defendant charged with first-degree murder did not deprive him of fair trial. 9. <bold>CRIMINAL LAW</bold> — <italic>Time — Extension — Rehearing — Execution — Judgment —</italic><italic>Reset — Later Date.</italic> Inasmuch as time within which defendant was allowed to file petition for rehearing extended beyond week for which his execution had theretofore been set, execution of judgment would be reset for a later date.

1. <bold>CONTRACTS</bold> — <italic>Prior — Merger — Final — Executed.</italic> Prior agreements are merged in the final and formal contracts executed by the parties. 2. <bold>DEEDS</bold> — <italic>Sale and Purchase Agreement — Delivery — Merger — One —</italic><italic>Number — — Part Performance — Obligatory.</italic> If terms of sale and purchase agreement are fulfilled by delivery of deed, there is a merger; but if delivery of deed is only one of a number of things to be performed under terms of contract, then delivery of deed constitutes part performance, and the other matters to be performed remain obligatory. 3. <bold>CONTRACTS</bold> — <italic>Deed — Intent — Actions — Subsequent — Delivery — Provision</italic><italic>— Enforcement — Appeal and Error.</italic> Reviewing court is of the view that reading of whole agreement between parties hereto indicates that parties intended it to govern their actions subsequent to delivery of deed, and execution of deed was only one of the covenants to be performed, hence, trial court erred in refusing to enforce executory provision in agreement with reference to payment of difference between agreed minimum water tap and current rate.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Court — Break and Enter — Intent —</italic><italic>Insufficiency — Specific Crime.</italic> A count in an information which charged that defendant did break and enter "with intent then and there to <italic>commit a</italic><italic>crime</italic>" is insufficient, since it is required that a specific crime be alleged. 2. <bold>BURGLARY</bold> — <italic>Essential Element — Specific Crime — Statute.</italic> One of the essential elements in a charge of burglary under C.R.S. 1963, 40-3-5 is that the accused have the intent to commit a specific crime at the very time and place of breaking and entering. 3. <italic>Information — Specify — Ulterior Crime — Entry.</italic> An information charging burglary must specify by name the ulterior crime which it is alleged the accused intended to commit upon entry into the building. 4. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Incorporation by Reference — Burglary —</italic><italic>Larceny — Clear and Specific — Defective.</italic> Where burglary count of information failed to incorporate by reference either of larceny counts,<page_number>Page 504</page_number> and larceny counts failed to make any reference to burglary count, <italic>held</italic>, in absence of clear and specific incorporation by reference there must be reversion to general rule which states that each count of an information to be valid must be independent of others and itself charge the defendant with a distinct and different offense, hence, burglary count is fatally defective. 5. <bold>CONSPIRACY</bold> — <italic>Burglary — Defective — Reliance — Status — Jurisdiction —</italic><italic>Counts — Information.</italic> Where burglary count is fatally defective and where second count of information pertaining to conspiracy to commit burglary is reliant upon sufficiency of burglary count, <italic>held</italic>, in such instance, it has no better status; hence, trial court lacked jurisdiction over offenses charged in either first or second counts of information. 6. <bold>CRIMINAL LAW</bold> — <italic>Instruction — Stolen Property — Possession — Unexplained</italic><italic>— Jury — Proof — Shifting of Burden — Innocence — Appeal and Error.</italic> Instruction regarding unexplained recent possession of stolen property which indicated to jury that burden of proving rightful possession was on defendant and therefore had effect of shifting burden to defendant to prove his innocence constituted prejudicial error.