Volume 171 — Colorado Reports

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Vagrancy Ordinance — Unconstitutional.</italic> Portion of Denver's vagrancy ordinance under which defendant was charged and convicted — which stated that any person found wandering about public ways or places at late hours without any visible or lawful business and not giving<page_number>Page 2</page_number> satisfactory account of himself should be deemed a vagrant — <italic>held</italic> unconstitutional. 2. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Vagrancy Ordinance — Crime — Failure to Give</italic><italic>Satisfactory Account — Unconstitutional — Dominguez v. City and County of</italic><italic>Denver — Overruled.</italic> Portion of vagrancy ordinance having as an element of the crime "the failure of a person to give satisfactory account of himself" is deemed much too loose to satisfy constitutional requirements; accordingly, Supreme Court overrules <italic>Dominguez v. City and County of</italic><italic>Denver</italic>, which held ordinance under which defendant was charged not violative of due process. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Giving a Satisfactory Account of Himself —</italic><italic>Vagrancy Ordinance — Overbroad — Vague — Unconstitutional.</italic> Supreme Court is of the view that the term "giving a satisfactory account of himself" as contained in Denver's vagrancy ordinance is too overbroad and vague to meet constitutional requirements. 4. <italic>Legislation — Necessary — Law Enforcement — Infringement — Personal</italic><italic>Liberties — Void.</italic> No matter how necessary to law enforcement a legislative act may be, if it materially infringes upon personal liberties guaranteed by the constitution, then that legislation must fall.

1. <bold>NEGLIGENCE</bold> — <italic>Loading of Gun — Station Wagon — Firing — Pellets —</italic><italic>Killing of Dog — Evidence.</italic> Where gun purchaser loaded weapon inside station wagon and, as he closed breech, gun fired and pellets struck plaintiff's dog causing its death, <italic>held</italic>, under the circumstances, even assuming defect in gun unknown to gun purchaser caused gun to fire, nevertheless, gun purchaser's act in loading weapon inside station wagon was sufficient to constitute negligence as shown by the evidence and to support jury's verdict against him. 2. <bold>INDEMNITY</bold> — <italic>Injuries — Primary Fault — Recovery — Party — Liability —</italic><italic>Indemnitor.</italic> Where A's injuries result from the primary fault of B, but A has recovered against C for the injuries, C may hold B as indemnitor. 3. <bold>WEAPONS</bold> — <italic>Loading of Gun — Firing — Breech — Pellets — Killing of Dog —</italic><italic>Defect — Cause — Injury — Jury.</italic> Where gun purchaser loaded weapon in station wagon and, as he closed breech, gun fired without any depression of triggers and pellets struck plaintiff's dog killing it, <italic>held</italic>, under the circumstances, question of whether there was defect in gun and, if so, whether that defect was <italic>primary</italic> cause of injury are issues of fact that<page_number>Page 43</page_number> should be submitted to jury under evidence in the record. 4. <bold>SALES</bold> — <italic>Inexpensive Shotgun — Patent or Trade Name — Negative — Implied</italic><italic>Warranties — Merchantability — Fitness.</italic> Where record reflects that defendant desired to purchase an inexpensive shotgun and did not make the purchase in reliance on any patent or trade name, <italic>held</italic>, under the circumstances, this was a sale by description and accompanied by implied warranty of <italic>merchantability</italic> and implied warranty of <italic>fitness</italic> under the Uniform Sales Act. 5. <italic>Gun Purchaser — Inexpensive — Warranties — Fitness — Merchantability</italic><italic>— Applicable.</italic> Where facts reveal that gun purchaser desired an inexpensive weapon and that gun which he purchased was a "cheap" one,<italic>held</italic>, as such, the warranties of fitness and merchantability under the Uniform Sales Act were not affected by the value of the gun. 6. <bold>INDEMNITY</bold> — <italic>Gun Purchaser — Dog Owner — Liability — Determination —</italic><italic>Third Party Complaint — Retrial — Issues — Negative.</italic> Where gun purchaser's liability to dog owner for negligent shooting of dog had been properly determined in favor of dog owner, <italic>held</italic>, under such circumstances, retrial of issues under gun purchaser's third party complaint against gun seller as indemnitor would not entitle gun purchaser to a retrial of the issues between himself and dog owner; hence, present judgment of dog owner against gun purchaser must stand.

1. <bold>SOCIAL SECURITY AND PUBLIC WELFARE</bold>. — <italic>Unemployment Insurance — General</italic><italic>Assembly — Intent — Benefit — lack of Fault</italic>. In the granting of benefit awards, it is the intent of the general assembly that the department, at<page_number>Page 93</page_number> all times, be guided by the tenet that unemployment insurance is for the benefit of persons unemployment insurance is for the benefit of persons unemployed through no fault of their own. 2. <italic>Unemployment Compensation — Failure to Return to Work — No Award —</italic><italic>Proper</italic>. Where claimant for unemployment compensation benefits failed to return to work as scheduled after authorized vacation and referee found such fact to be primary reason for employer's termination of his employment, and where record reflects that there are no circumstances which would take case out of <italic>No Award</italic> section of act notwithstanding claimant's contention that "saving" provision of act entitled him to full award, <italic>held</italic>, since unemployment was caused by his failure to take reasonable measures to preserve his relation with his employer, there is no basis for reversing <italic>No</italic><italic>Award</italic> entered by Commission and affirmed by trial court. 3. <italic>Unemployment Compensation Act — liberal construction — twisting of</italic><italic>Facts — Prohibition — Information — Notification — Statute — Negative</italic>. Notwithstanding the fact that the Unemployment Compensation Act is to be liberally construed, it is not the function of "liberal" construction to twist the facts in order to reach a result favorable to an employee; accordingly, under circumstances of instant case, reviewing court cannot conceive of any construction which would result in the conclusion that unemployment compensation claimant had "informed his employer of the condition of his health prior to quitting his employment," or that he had "notified the employer at the earliest practicable time after such occurrence," or that he had "notified the employer at the earliest practicable time after such occurrence," in compliance with the mandate of the statute.

1. <bold>Divorce</bold> — <italic>Property Division — Conflict — Request — Submission —</italic><italic>Findings — Conclusions — Duty of Trial Judge.</italic> In property division proceedings, with reference to method of judicial decision employed, where record reflects that trial judge, instead of toiling with problems presented as to value and indicating conclusions — especially where testimony relating thereto was in substantial conflict — merely asked each side to submit detailed findings, conclusions and judgment for consideration by court, <italic>held</italic>, although there may be exceptional cases in which such procedure is justified, yet they are rate, and certainly not represented by instant case; here, after taking time to digest the evidence, trial judge and the responsibility to give utterance — solely form his own lips — of his views. 2. <bold>Trial</bold> — <italic>Findings — Presumption — Court.</italic> Findings entered by a trial court are presumed to be its own findings. 3. <bold>Divorce</bold> — <italic>Property Division — Amount — Support — Alimony — Evidence —</italic><italic>Abuse — Manner of Payment — Interest — Penalty.</italic> In property division proceeding, reviewing court concludes that the evidence is sufficient to sustain the figure of $400,000 in lieu of property division, support money payments of $1,050 per month, and alimony payment of $250 per month; however, trial court abused its discretion with respect to manner of payment of the sum of $400,000, the requirement that interest be paid upon the deferred unpaid balances thereof, and the imposition of the $250 monthly penalty. 4. <italic>Property Division — Award — Evidence — Affirmance.</italic> In a property division proceeding, where there is evidence to support a monetary award by the trial court, <italic>held</italic>, under such circumstance it is not properly within<page_number>Page 128</page_number> the province of the reviewing court to disturb it. 5. <italic>Property Division — Liquidations — Bankruptcy — Order — Payment —</italic><italic>Confiscatory — Abuse of Discretion.</italic> In property division proceeding, where record reflects that if husband were compelled to sell or liquidate a substantial portion of his interests he would be bankrupt, <italic>held</italic>, under such circumstances, the order requiring payment of $100,000 within a month and $12,500 each quarter upon the remaining sum of $300,000 was confiscatory and an abuse of discretion. 6. <italic>Property Division — Husband — Partnership — Corporation — Extract —</italic><italic>Funds — Difficulty — Interest — Unpaid Portion — Prohibition — Exception —</italic><italic>Default.</italic> In property division proceeding, where ex-husband's burden of extracting $400,000 from his interest in corporation and partnership was great, <italic>held</italic>, under such circumstances, trial court's award of interest on unpaid portion of cash sum awarded ex-wife — except on defaulted installments — was an abuse of discretion. 7. <italic>Alimony Order — Effect — Award Plus Penalty — Interest — Disallowed.</italic> Where the effect of an alimony order was an award of $250 alimony plus a penalty, <italic>held</italic>, under such circumstances reviewing court regards the penalty as being in the same category as interest; it should not be allowed, since to award interest in such situation was an abuse of discretion. 8. <italic>Alimony Payments _ Default — Interest — Statutory — Proper.</italic> Upon default by ex-husband in alimony payments, ex-wife would be entitled to interest on such defaulted payment at the statutory rate. 9. <italic>Award — Penalty _ Guise _ Alimony _ Prohibition.</italic> In property division proceeding, award of penalty under the guise of alimony will not be sustained.

1. <bold>HOMICIDE</bold> — <italic>First Degree — Second Degree — Evidence — Support — Verdict</italic><italic>— Fair Trial.</italic> Where defendant was charged with killing and murdering victim wilfully and with premeditated malice aforethought and was found guilty by jury of lesser included offense of murder in the second degree,<italic>held</italic>, review of record reveals no reversible error; the defendant received a fair trial and the verdict of the jury is fully supported by the evidence. 2. <italic>Second Degree — Denial of fair Trial — Negative — Qualify — Jury —</italic><italic>Death Penalty — District Attorney — Proper.</italic> Where defendant was convicted of second degree murder and contends that he was denied a fair trial by permitting district attorney to qualify jury panel for the death penalty,<page_number>Page 154</page_number> when at the time the People knew they had no direct evidence of the alleged homicide and that the case against him consisted entirely of circumstantial evidence, <italic>Held</italic>, contention is without merit; considering the unpredictability of trials and the circumstances surrounding the case, the district attorney did not act improperly in qualifying the jury to return the death penalty. 3. <bold>JURY</bold> — <italic>Second Degree Murder — District Attorney — Question — Voir Dire</italic><italic>— Religious Objection — Death Penalty — Lack of Merit.</italic> Where defendant was convicted of second degree murder and now contends that court committed reversible error by permitting district attorney to ask veniremen on individual voir dire whether they had any moral, conscientious or religious objection to imposition of death penalty because question injected a religious issue and other extraneous matters into the case, and also denied him a jury which represented a cross section of the community thus assuring prosecution of a jury more prone to convict, <italic>held</italic>, contention is without merit; actually, question did not inject a religious issue of deny defendant a fair trial. 4. <italic>Second Degree — Excusing Seven Veniremen — Instructions — Life</italic><italic>Imprisonment — First Degree — Lack of Merit.</italic> Where defendant was convicted of second degree murder and now contends that court erred when it excused seven veniremen without a showing first having been made that they would not follow instructions of court by considering both life imprisonment and death upon finding him guilty of first degree murder, <italic>held</italic>, contention lacks merit; veniremen were properly excused. 5. <bold>HOMICIDE</bold> — <italic>Evidence — Clothing — Stained — Human Blood — Considered</italic><italic>Together — Probative — Admissible.</italic> Where defendant was convicted of second degree murder and now contends he was denied a fair trial by testimony that certain items of his clothing introduced into evidence were stained by human blood and since there was no showing the stains were from either the victim or defendant, the evidence was not relevant or material and its introduction was prejudicial <italic>held</italic>, contention lacks merit; even though standing alone the evidence may not have been sufficient to sustain finding of guilt, yet, when considered together with all other evidence of violent death and all justifiable inferences, the evidence was relevant, material, probative and properly admitted. 6. <bold>WITNESSES</bold> — <italic>Homicide — Examination — Denial — Exclusionary Rule —</italic><italic>Discretion.</italic> In homicide prosecution, trial court did not err in denying defendant an opportunity to examine two prospective witnesses regarding a<page_number>Page 155</page_number> conversation they had with a third witness in the corridor outside the courtroom after exclusionary rule had been invoked; this is a matter resting within the sound discretion of the court, and reviewing court finds no abuse of discretion in trial court's ruling. 7. <italic>Exclusion — Violation — Penalty — Testify — Permission — Discretion.</italic> Whether exclusion is initially invoked, and, if invoked, what constitutes a violation thereof, and even if it be determined that there was a violation, what penalty should be imposed or whether the offending witness should be allowed to testify, are all matters resting within the sound discretion of the court. 8. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Calling of Witnesses — Choice — Trial of Case —</italic><italic>Discretion.</italic> A prosecuting attorney is not obliged to call any particular witness, but may try his case in his own way and at his discretion call those witnesses he chooses. 9. <bold>CONSTITUTIONAL LAW</bold> — <italic>Public Trial — Meaning — Relative Term —</italic><italic>Circumstances — Saturday — One Door Open.</italic> The term "public trial" contemplated by the constitution is a trial which is not secret, one that the public is free to attend; to a great extent, it is a relative term and its meaning depends largely on the circumstances of each particular case; hence, absent some showing on defendant's part beyond one that trial was held on Saturday when only one building door was open, reviewing court cannot assume that trial was not public. 10. <bold>HOMICIDE</bold> — <italic>Express Malice — Existence — Question of Fact — Jury —</italic><italic>Evidence.</italic> Express malice exists when there is a deliberate and formed design to take human life and is a question of fact to be determined by the jury on all the evidence in the case. 11. <italic>Malice — Premeditation — Deliberation — Inferred — Weapon.</italic> Malice, premeditation and deliberation may also be inferred from the use of a deadly weapon. 12. <italic>Death — Gunshot — Powder Marks — Close Range — First Degree Murder</italic><italic>— Jury — Proper.</italic> In prosecution for homicide, where victim died in early morning hours as a result of gunshot wounds and powder marks on her body indicated she had been shot a close range, <italic>held</italic>, under such circumstances, court was correct in submitting question of first degree murder to the jury. 13. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Voluntary Manslaughter — Definition — Lack of</italic><italic>Evidence — Failure to Tender.</italic> Manslaughter, to be voluntary, must be upon<page_number>Page 156</page_number> sudden hear of passion caused by provocation sufficient to make passion irresistible; and there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by person killed to commit serious personal injury on person killing; hence, where record is devoid of any evidence which would have supported verdict of guilty of voluntary manslaughter, court was not obliged to instruct thereon, especially where no such instruction was tendered. 14. <bold>WITNESSES</bold> — <italic>Testify — Expert — Discretion — Review — Abuse.</italic> It is a matter within trial court's discretion to determine if a witness is to be allowed to testify as an expert that determination will not be disturbed on review where there is no showing of abuse of discretion. 15. <italic>Weight — Expert — Jury — Cross-examination.</italic> The weight to be accorded expert testimony is a question solely for the jury; and such testimony is subject to the test of cross-examination as any other testimony; and jurors are not bound by it and may accept or reject it as they see fit. 16. <bold>CRIMINAL LAW</bold> — <italic>Photographs — Relevant — Shocking Details — Admissible.</italic> Photographs are admissible in evidence if they depict facts which are relevant; and they are not rendered inadmissible because they reveal shocking details of the crime. 17. <italic>Photographs — Scene of Crime — Admissible.</italic> Photographs which depict the crime scene as it was allegedly created by defendant are properly admissible. 18. <italic>Photographs — anything — Words — Competent.</italic> Photographs of anything a witness can describe in words are competent evidence. 19. <bold>HOMICIDE</bold> — <italic>Photograph of Deceased — Chin — Wound — Marks — Dirt —</italic><italic>Window Sill — Admissible.</italic> In prosecution for homicide, photograph of deceased as she appeared at scene of crime, photograph of undersurface of chin of victim showing wound there, and photograph of marks left in dirt on basement window sill apparently through which entry was gained into victim's apartment were properly admitted into evidence. 20. <italic>Photograph — Deceased — Cumulative — Reversal — Negative.</italic> Even if photograph of deceased as she appeared at scene of crime was cumulative, there was no abuse of discretion in its admission so as to require a reversal of the conviction of murder in the second degree.<page_number>Page 157</page_number>

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Free Transcript — Proof — Issuance — Useful —</italic><italic>Appeal — Expiration — Relief — Post Conviction Review.</italic> To warrant furnishing of free transcript, petitioner must make showing that furnishing of such would not be vain and useless gesture; and, when time for appeal has expired, that he would be entitled to relief under rule relating to post conviction review. 2. <italic>Free Transcript — Allegation — Ineffective Assistance of Counsel —</italic><italic>Long Experience — Malfeasance — Failure to Demonstrate.</italic> Where petitioner filed his motion for a free transcript and as one of the grounds for his motion alleged ineffective assistance of counsel, <italic>held</italic>, there is no merit to the allegation; especially, where record reflects that trial counsel was an attorney with long experience in criminal cases both as prosecutor and as defense counsel, and that petitioner failed to demonstrate that his counsel was guilty of palpable malfeasance, misfeasance or nonfeasance. 3. <italic>Counsel — Investigation — Defenses — Failure to Apprise Court —</italic><italic>Granting of Transcript — Negative.</italic> Where petitioner failed to apprise court of what defenses were not investigated and record would not have disclosed anything concerning counsel's investigation, <italic>held</italic>, under the circumstances, allegation that counsel failed to investigate all available defenses did not justify granting of transcript. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Counsel — Objections — Proper — Trial — Strategy —</italic><page_number>Page 437</page_number><italic>Technique — Guarantee — Mistakes — Negative.</italic> When and whether counsel has properly raised objections during the trial is a matter of trial strategy and technique; and constitutional right to assistance of counsel is not a guarantee against mistakes of strategy or exercise of judgment. 5. <bold>ATTORNEY AND CLIENT</bold> — <italic>Acts and Omissions — Trial — Binding.</italic> The acts and omissions of an attorney during the course of a trial are binding upon his client. 6. <bold>CRIMINAL PROCEDURE</bold> — <italic>Counsel — Preservation — Record — Transcript —</italic><italic>Negative.</italic> Where petitioner failed to advise court as to how his retained counsel failed to preserve record for appeal, <italic>held</italic>, under the circumstances, allegation that counsel failed to preserve record for appeal purposes did not justify granting of transcript. 7. <italic>Counsel — Illness — Recess — Recovery — Prejudice — Negative.</italic> Where petitioner alleged that his counsel became ill during course of trial resulting in recess of over a week which created situation where jury was prejudiced by such recess, <italic>held</italic>, the allegation lacks merit since petitioner failed to advise court in what manner he was prejudiced; especially, where nothing in allegation indicates that trial court abused its discretion by recessing trial to give defense counsel time to recover from his illness. 8. <bold>CRIMINAL LAW</bold> — <italic>Evidence — Relevancy — Materiality — Connection — Victim</italic><italic>— Perpetrator — Crime.</italic> The law in Colorado is clear that to establish the relevancy and materiality of evidence the prosecution need only connect it with the victim, the perpetrator, or the crime. 9. <italic>Evidence — Admissibility — Purport.</italic> For evidence to be admitted it must be shown to be what it purports to be. 10. <italic>Real Evidence — Admission — Constitutional Question — Negative.</italic> In the absence of extraordinary circumstances, such as the use of false evidence, the admission of real evidence does not raise a constitutional question.

1. <bold>TOWNS</bold> — <italic>Land — Addition — Dispute — Filing of Plat — Clerk and Recorder</italic><italic>— Presumption — Compliance — Statute.</italic> In action involving dispute as to whether certain land had become legal addition to particular town, where<page_number>Page 442</page_number> record reflects that plat had been filed with County Clerk and Recorder,<italic>held</italic>, under the circumstances rebuttable presumption exists that owners of land complied with statute before filing plat for record; especially since statute is prohibiting one declaring that filing with County Clerk and Recorder <italic>shall not be done</italic> until statutory provisions have been complied with. 2. <bold>EVIDENCE</bold> — <italic>Presumption — Men — Obey — Law.</italic> There is a presumption that men intend to obey rather than to violate the law. 3. <italic>Presumption — Public Officials — Discharge — Duties.</italic> It is presumed that public officials properly discharge their duties. 4. <bold>TOWNS</bold> — <italic>Land — Legal Addition — Dispute — Evidence — Patrol — Fire</italic><italic>Fighting — Street Maintenance — Voting — Payment of Taxes — Control.</italic> In action involving dispute as to whether certain land had become legal addition to particular town, reviewing court is of view that trial court misconceived force and effect of evidence adduced to show that addition was part of town, to wit: that town marshal patrolled landowners' property; that town fire-fighting equipment responded to fires on landowners' property; that street were plowed and maintained; and that other inhabitants of addition voted in town's elections; hence, presumption that officials performed their duty is supported not only be fact that plaintiffs and all other property owners paid town taxes but also by evidence that town exercised measure of control over addition.

1. <bold>JURY</bold> — <italic>First Degree Murder — Alternative Punishments.</italic> In Colorado, a prospective juror must be willing to consider the alternative punishments which it alone may impose in connection with first degree murder. 2. <italic>Right of Prosecution — Qualify.</italic> The right of the prosecution to qualify the jury has consistently been upheld in Colorado. 3. <italic>Disqualification — Inability — Join — Verdict — Death — Penalty —</italic><italic>Duty — Propriety.</italic> Disqualification of a juror for <italic>inability</italic> to join in a verdict imposing the death penalty is not error where the jury has the duty<page_number>Page 522</page_number> to determine the defendant's guilt or innocence and his punishment if he is found guilty. 4. <bold>HOMICIDE</bold> — <italic>First Degree — Conspiracy — Qualification — Jury — Death</italic><italic>Penalty — Proper.</italic> In prosecution for murder in the first degree and conspiracy to commit murder, reviewing court is of the view that there were sufficient uncertainties as to what evidence might be developed at the trial to warrant qualifying the jury for the death penalty. 5. <bold>JURY</bold> — <italic>Exclusion — Opposition — Capital Punishment — Unrepresentative —</italic><italic>Negative.</italic> Exclusion of jurors opposed to capital punishment would not be presumed to result in an unrepresentative jury on the issue of guilt or substantially increase the risk of conviction. 6. <italic>First Degree — Conspiracy — Dismissal — Jurors — Death — Penalty —</italic><italic>Predilection — Unclear — Court — Lack of Error.</italic> In prosecution for first degree murder and conspiracy to commit murder, where testimony of five veniremen dismissed by trial court were internally inconsistent, with the result that their true predilection concerning the death penalty was unclear, <italic>held</italic>, under the circumstances court did not err in dismissing these jurors. 7. <italic>Death Penalty — Follow Instructions — Unclear — Judge — Determination</italic><italic>— Juror — Impartial.</italic> Where, from voir dire, it was unclear whether jurors would be able to set aside their convictions regarding the death penalty and follow the instructions of the trial court, under the circumstances, it was for the trial judge to determine whether a particular juror could serve impartially. 8. <bold>CONTINUANCE</bold> — <italic>Discretion of Court.</italic> Whether a continuance is to be granted is a matter resting within the trial court's discretion considering all the circumstances of the case. 9. <bold>CONSTITUTIONAL LAW</bold> — <italic>Speedy Trial — Consistent — Business of the Court.</italic> The constitutional guaranty of a speedy trial has been held to be a trial consistent with the court's business. 10. <italic>Speedy Trial — Continuance — Prejudice — Burden — Failure to</italic><italic>Sustain.</italic> Where defendant has not sustained the burden of showing that the continuance complained of was not consistent with the court's business in that defendant was prejudiced by the continuance, his contention of denial of a speedy trial cannot under such circumstances be sustained. 11. <bold>HOMICIDE</bold> — <italic>First Degree Murder — Counsel — Deprivation — Continuance —</italic><page_number>Page 523</page_number><italic>Denial — Prejudice — Negative.</italic> In prosecution for first degree murder and conspiracy to commit murder, contention of defendant — that he was denied effective assistance of counsel when trial court refused to grant a short continuance after a mistrial — is without merit; especially where record reflects that defendant had the benefit of a well prepared and extremely skillful defense and no prejudice was shown in denial of continuance. 12. <italic>First Degree — Conspiracy — Fair Trial.</italic> In prosecution for first degree murder and conspiracy to commit murder, record as a whole reveals that proceeding was fairly conducted; defendant received a fair trial. 13. <bold>CRIMINAL PROCEDURE</bold> — <italic>Motion for Severance — Evidence Not Before It —</italic><italic>Ruling — Prohibition.</italic> In considering a motion for severance, the trial court is not entitled to rule on evidence not before it. 14. <italic>Motion for Severance — Trial — Review — Grounds — Different —</italic><italic>Denial — Proper.</italic> A motion for severance must contain the evidence which is claimed to be incompetent toward the moving party so that the court will be given the opportunity to determine whether the one requesting a severance may be prejudiced by testimony admissible against the co-defendant but not admissible as to him; hence, when petition for severance stated grounds for severance <italic>other</italic> than those which defendant argued on review, trial court ruled correctly in holding that grounds upon which motion for severance were predicated were insufficient to require granting of severance.