Volume 172 — Colorado Reports

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Burglary — Confinement — Lack of Bond — Prior to</italic><italic>Conviction and Sentence — Involuntary Servitude — Due Process — Denial —</italic><italic>Lack of Merit.</italic> Where defendant was confined in jail prior to conviction and sentence for burglary because he was unable to furnish bond and now contends that such confinement was a form of involuntary servitude under Colorado constitution and in violation of due process clause of fourteenth amendment to the United States Constitution, <italic>held</italic>, the contention is without merit; especially where sentence imposed was less than sentence which could have been imposed, and trial court stated that it took pre-sentence confinement time into consideration, together with other factors, in determining sentence. 2. <bold>JAILS</bold> — <italic>Confinement — Credit — Prior to Conviction and Sentence —</italic><italic>Conclusive Presumption.</italic> Whenever it is possible, as a matter of mechanical calculation, that credit could have been given a defendant for the period of confinement in jail prior to conviction and sentence, reviewing court, under such circumstances, will conclusively presume that it was given. 3. <italic>Sentence — Confinement — Prior to Sentence — Maximum — Credit —</italic><italic>Presentence Time — Presumption — Conclusive.</italic> Where the actual sentence imposed plus the time spent in jail prior to sentence do not exceed the maximum sentence which could be imposed, it will be <italic>conclusively presumed</italic> that the sentencing court gave the defendant credit for the presentence time spent in confinement.<page_number>Page 9</page_number>

1. <bold>DIVORCE</bold> — <italic>Judgment — Arrearages — Motion — Stay of Execution —</italic><italic>Garnishee Summons — Grant of Stay — Error.</italic> Where ex-wife obtained judgment for arrearages and support money payments ordered in divorce decree and ex-husband, without notice, filed motion and obtained <italic>ex parte</italic> order staying execution of judgment until date set for hearing on his motion, which stay also involved garnishee summons served on ex-husband's employer to which latter had answered that he was holding specific sum until further order of court, <italic>held</italic>, under the circumstances, stay of execution granted by trial court must be set aside. 2. <italic>Installment — Support — Decree — Judgment Debt — Final — Challenge</italic><italic>— Negative — Execution — Proper.</italic> Each installment of support money payments under a divorce decree which has not been modified becomes a judgment debt similar to any other judgment for money and such original decree is final in character with respect to each matured installment and so cannot be challenged here or elsewhere and execution may be issued upon it. 3. <italic>Ex-Wife — Levy — Execution — Judgment — Arrearages — Support —</italic><italic>Collect.</italic> Ex-wife entitled to levy execution on her judgment entered after<page_number>Page 44</page_number> accumulation of arrearages in support money payments ordered in divorce decree in same manner as any other judgment creditor and was entitled to collect on that judgment. 4. <bold>JUDGMENT</bold> — <italic>Relief — Mistake — Fraud — Six Months — Rules.</italic> Under C.R.C.P. 60(b) any motion for relief of judgment on the grounds of mistake or fraud must be made within six months after judgment. 5. <italic>Error — Calculation — Interest — Clerical — Stay of Execution —</italic><italic>Negative.</italic> Error in the calculation of interest on a judgment is merely clerical and does not require court intervention and stay of execution. 6. <bold>DIVORCE</bold> — <italic>Amount of Arrearage — Undisputed — Entry of Judgment — Notice</italic><italic>— Unnecessary.</italic> Where the amount of arrearage is undisputed no notice is necessary before entry of judgment on unpaid total arrears. 7. <italic>Arrearages — Support — Specific — Date — Res Judicata.</italic> Where it is clear from the record that the amount of arrearages in support money payments ordered in divorce decree is admittedly in a specific sum as of a particular date, <italic>held</italic>, under such circumstances, it is <italic>res judicata</italic> and ex-wife was entitled to immediate judgment on the admitted amount.

1. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Marijuana — Conspiracy — Search — Warrant — Valid</italic><italic>— Arrest — Motion to Suppress — Denial.</italic> Where defendants were arrested and charged with possession of narcotic drugs and conspiracy to possess narcotic drugs and a search by police officers authorized by a search warrant turned up marijuana in their possession, defendants' argument — that search by officers was not made (1) pursuant to a valid search warrant, or (2) incident to a lawful arrest, and that district judge was in error in denying their motions to suppress — is without merit. 2. <bold>SEARCHES AND SEIZURES</bold> — <italic>Fourth Amendment — Guarantee — Warrant —</italic><italic>Probable Cause — Oath.</italic> The Fourth Amendment to the United States Constitution, made binding on the states through the Fourteenth Amendment, guarantees that no search warrant shall issue without probable cause supported by oath or affirmation. 3. <italic>Probable Cause — Warrant — Determination — Magistrate.</italic> The existence of probable cause for the issuance of a warrant is to be determined by a neutral and detached magistrate. 4. <italic>Probable Cause — Source — Informer — Magistrate — Underlying</italic><italic>Circumstances — Basis — Credible — Reliable.</italic> Where the sole source of information concerning probable cause is a secret police informer, then the magistrate can make a finding of probable cause only with some knowledge of the underlying circumstances upon which the informant based his information<page_number>Page 113</page_number> and some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. 5. <italic>Facts — Magistrate — Determination — Probable Cause — Affidavit.</italic> The express requirement of the Colorado constitution makes it clear beyond a doubt that sufficient facts to support a magistrate's determination of probable cause must appear on the face of the written affidavit. 6. <italic>Warrant — Search — Facts — Insufficient — Lack of Personal Knowledge</italic><italic>— Officer — Probable Cause — Judge — Nullity.</italic> Where recitation of facts in affidavit to support finding of probable cause to issue search warrant pertaining to a search for narcotic drugs did no more than state that officer received information from investigator who received information from a reliable source, and there is nothing in affidavit concerning personal knowledge of facts on part of either officer, <italic>held</italic>, under the circumstances, mere conclusions by officer provide nothing from which county judge could have made an independent determination of probable cause; hence, search warrant issued on basis of affidavit was a nullity. 7. <bold>ARREST</bold> — <italic>Narcotic Drugs — Identification — Van Truck — Facts — Probable</italic><italic>Cause — Seizure — Search — Valid.</italic> Where officers placed defendant under arrest for possession of narcotic drugs immediately upon identifying him and before any search was made of van truck or person of defendant and had knowledge of sufficient facts to justify their conclusion that probable cause existed to make the arrest, <italic>held</italic>, under these circumstances the arrest of defendant was lawful and marijuana was properly seized as the result of a search incident to a valid arrest. 8. <bold>SEARCHES AND SEIZURES</bold> — <italic>Belief — Article — Concealed — House —</italic><italic>Justification — Negative.</italic> Belief, no matter how well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of such place without a lawful warrant. 9. <bold>ARREST</bold> — <italic>Police — Illegally on Premises — Use — Item — Basis — Probable</italic><italic>Cause — Prohibition.</italic> Once police officers are illegally on the premises, they may not make any use of anything observed or seized therein to form a basis for a determination of probable cause for arrest of the occupants. 10. <italic>Evidence — Plain View — Basis — Determination — Probable Cause.</italic> Police officers are not required to close their eyes to evidence in plain view, especially where the sight of such evidence could properly form the<page_number>Page 114</page_number> basis for a determination of probable cause to make an arrest. 11. <italic>Probable Cause.</italic> Probable cause deals with probabilities which are not technical, but are factual and practical considerations of everyday life on which reasonable and prudent men act. 12. <italic>Residence — Suspect — Marijuana — Sale — Occupant — Plastic Bag —</italic><italic>Probable Cause — Seizure — Validity.</italic> Where officers knew that person in whose name residence was listed had just been arrested with suspected marijuana in his possession; had good reason to believe that sale of narcotic drugs had taken place at this residence the night before; and that when they identified themselves as police officers to codefendant they observed other occupant of room run from kitchen with plastic bag, <italic>held</italic>, under the circumstances, reviewing court concludes officers entered building with probable cause to arrest the two occupants within; hence, marijuana in plastic bag was properly seized in search and incident to valid arrest. 13. <bold>SEARCHES AND SEIZURES</bold> — <italic>Evidence — Precede — Arrest — Propriety.</italic> Under certain circumstances it is of no significance that the actual seizure of the evidence preceded the formal arrest of the defendant. 14. <italic>Subjective Belief — Officers — Legality — Unaffected.</italic> The legality of the search is not affected by the subjective belief of the officers.

1. <bold>TOWNS</bold> — <italic>Disconnection — Tract — Hearing — Petitions — Setting — Time</italic><italic>Limit — Statute.</italic> In statutory proceeding by landowner to disconnect a tract aggregating more than twenty acres of agricultural land from a particular town, where trial court in the first instance set a hearing on both the original and the amended petitions with the statutory time limits,<italic>held</italic>, such action on the part of the court complied with the statute. 2. <bold>CONTINUANCE</bold> — <italic>Lack of Proscription.</italic> There is no proscription against continuances. 3. <bold>TOWNS</bold> — <italic>Disconnection — Tract — Hearing — Petitions — Statute —</italic><italic>Continuances — Proper — Jurisdiction.</italic> In statutory proceeding by landowner to disconnect a tract aggregating more than twenty acres of agricultural land from a particular town, where trial court in the first instance complied with the statute in setting the case within the statutory period and thereafter granted continuances, <italic>held</italic>, in setting the case within the<page_number>Page 218</page_number> statutory period, the court did not thereafter loss jurisdiction by virtue of granting the continuances which set hearings on the petitions after the statutory period. 4. <bold>JUDGMENT</bold> — <italic>Res Judicata — Negative — Disconnection of Tract — Portion —</italic><italic>Entire — Prior Action — Dismissal — Resubmission — Proper.</italic> In statutory proceeding by landowner to disconnect a tract aggregating more than twenty acres of agricultural land from a particular town, where land currently involved was but portion of entire property involved in prior action which was dismissed, <italic>held</italic>, such dismissal or adverse ruling in prior case was not res judicata; it was not a bar to resubmission of the question of disconnection of lesser portion of tract. 5. <bold>TOWNS</bold> — <italic>Disconnection of Tract — Statutory — Corridor — Irregular —</italic><italic>Contiguous — Decree — Proper.</italic> In statutory proceeding by landowner to disconnect a tract aggregating more than twenty acres of agricultural land from a particular town, reviewing court is of the view that although creation of the twenty-foot "corridor" has the effect of making the town's boundaries somewhat irregular, yet, insofar as small area of town is concerned, it remains contiguous to the rest of the town and is not "wholly isolated"; hence, trial court acted properly in decreeing disconnection.

1. <bold>ADVERSE POSSESSION</bold> — <italic>Eighteen Years — Evidence — Ownership — Absolute —</italic><italic>Statute.</italic> Under C.R.S. 1963, 118-7-1, eighteen years adverse possession is deemed conclusive evidence of absolute ownership. 2. <italic>Recognition — Record Title — Intent.</italic> A recognition of record title does not demonstrate an intent not to possess adversely. 3. <italic>Intent — Occupier — Possession — Lack of Title — Deed.</italic> Adverse possession cannot be successfully established unless there is an intent on the part of the occupier to possess real estate to which he has no title by deed. 4. <italic>Evidence — Support — Finding — Boundary Line — Possession — Open —</italic><italic>Notorious — Continuous — Statute.</italic> Evidence supports trial court's finding that present and past owners of lots 1 and 9 recognized the boundary line as relocated and that plaintiffs, as alleged adverse possessors, and their predecessors in title occupied and possessed the triangular portion of lot 1, openly, notoriously and continuously for more than the statutory period of eighteen years. 5. <italic>Question of Fact.</italic> Where or not possession is adverse is generally a question of fact to be determined by the fact finder. 6. <bold>BOUNDARIES</bold> — <italic>Quiet Title — Portion of Lot — Evidence — Finding — New</italic><italic>Boundary — Acquiescence.</italic> In quiet title action pertaining to a portion of lot 1 by plaintiffs, the alleged adverse possessors who are record owners<page_number>Page 307</page_number> of lot 9 which adjoins lot 1, evidence fully supports finding that subdivider intended to establish a new boundary; that he bladed in a barrier to show this boundary; that the subsequent owners of lots 1 and 9 agreed and acquiesced in the new boundary line; and that plaintiffs and their predecessors possessed and occupied as their own the land up the relocated boundary line.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Motion to Suppress — Lineup Identification —</italic><italic>Proper — Rules.</italic> A motion to suppress a lineup identification is a motion within the scope of Crim. P. 12(b)(1) which provides that any defense or objection which is capable of determination without the trial of the general issue may be raised by motion. 2. <italic>Order — Delaying Determination — Motion — Suppression of</italic><italic>Identification — Trial — Proper — Rules.</italic> Order of judge, in delaying determination of motion to suppress identification until trial, was within his power under Crim. P. 12(b)(4). 3. <italic>Judge — Authority — Deter Determination — Pretrial Motion —</italic><italic>Exceptions.</italic> In areas other than search and seizure and confessions, trial judge has authority to defer determination of a pretrial motion until trial. 4. <italic>Interlocutory Appeal — Adverse Ruling — Pretrial Motion to Suppress</italic><italic>— Proper.</italic> C.A.R. 4.1(a) provides that an interlocutory appeal may be taken from an <italic>adverse ruling</italic> by a trial court in a pretrial motion to suppress evidence. 5. <italic>Interlocutory Appeal — Adverse Ruling — Pretrial Motion to Suppress</italic><italic>— Right — Negative.</italic> Rule providing for an interlocutory appeal from an adverse ruling by trial court in a pretrial motion to suppress evidence is designed as a procedural device to facilitate review; it does not represent a constitutional right on the part of either the defendant or the People.<page_number>Page 400</page_number> 6. <italic>Deferral — Determination — Motion to Suppress — Lineup Identification</italic><italic>— Rules — In-court Identification — Due Process.</italic> Deferral of determination on motion to suppress lineup identification is not only in accordance with the Rules of Criminal Procedure but reflects the emphasis placed on in-court identification of defendant at trial as the touchstone of due process. 7. <italic>Objection — Trial — Admission — Evidence — Identification — Lineup</italic><italic>— Ruling.</italic> A defendant is not precluded from raising his timely objection at trial to the admission of evidence relating to his identification which may be tainted by a lineup and from a ruling by the judge on the question. 8. <italic>Admissibility — Confessions — Admissions — Hearing — Jury — Evidence</italic><italic>— Existence — Aware.</italic> The better practice with questions involving the admissibility of confessions and admissions is to conduct a hearing before the jury becomes aware that the evidence exists. 9. <italic>Pretrial Hearing — Requirement — Negative.</italic> A pretrial hearing in a criminal case is not a constitutional requirement. 10. <bold>CRIMINAL LAW</bold> — <italic>Attack — Sufficiency of Evidence — Reversal — Negative</italic><italic>— Support — Findings.</italic> An attack on the sufficiency of the evidence will not result in reversal where there is competent evidence in the record to support the findings of fact made by the judge. 11. <bold>SEARCHES AND SEIZURES</bold> — <italic>Burglary — Men's Store — Invitation — Police —</italic><italic>House — Finding — Support — Consent to Enter — Voluntary.</italic> In prosecution involving charges of burglary of men's store, evidence placed in record on the part of the People was sufficient to support finding by judge that police officers had been invited into house in which certain evidence was seized; and circumstances testified to by police officers were sufficient to support finding that consent to enter house was voluntarily given. 12. <italic>Premises — Legitimate — Police — Incriminating Evidence — Visible</italic><italic>— Proper.</italic> Once legitimately on the premises, police officers are not required to close their eyes to incriminating evidence plainly visible to them. 13. <bold>ARREST</bold> — <italic>Consent — Entry — Police — Sleeve — Bag — Probable Cause —</italic><italic>Search — Motion to Suppress — Denial — Proper.</italic> Where police officers, who were given consent voluntarily to enter house and who, while using their<page_number>Page 401</page_number> flashlights, noticed sleeve and bag marked with name of store from which goods were stolen, <italic>held</italic>, under the circumstances, officers had probable cause to arrest the occupants of the house; and since search conducted thereafter was one incident to a lawful arrest it was therefore constitutionally permissible; hence, motion to suppress was properly denied.

1. <bold>APPEAL AND ERROR</bold> — <italic>Review — Findings — Civil Service Commission —</italic><italic>Substitution of Judgment — Prohibition.</italic> In reviewing findings made by the Civil Service Commission in carrying out its duties, Supreme Court may not substitute its judgment for that of the Commission. 2. <italic>Finding of Fact — Upheld — Evidence.</italic> Any finding of fact will be upheld by the Supreme Court if it is supported by <italic>any</italic> competent evidence in the record. 3. <bold>CIVIL SERVICE</bold> — <italic>Dismissal of Employee — Supervisory — Lower Job —</italic><italic>Findings — Impairment of Efficiency and Morale — Evidence — Determinations</italic><italic>— Reasonable.</italic> In hearing before Civil Service Commission involving dismissal of employee from supervisory position and ordering him installed in lower job, findings of Commission — (A) that employee used harsh and abusive language toward personnel assigned to him; (B) that employee showed personal favor toward some personnel assigned to him and disfavor toward others, all without apparent justification; (C) that employee in presence of personnel assigned to him vilified his superiors thereby impairing efficiency and morale of such employees — were supported by competent evidence; the Commission was reasonable in its determinations. 4. <italic>Discipline — Expertise — Interference — Prohibition — Exception —</italic><italic>Gross Abuse.</italic> The discipline to be invoked by the Civil Service Commission<page_number>Page 447</page_number> is peculiarly a matter for its expertise, and must not be interfered with by the courts unless a clear, gross abuse of discretion is shown. 5. <italic>Dismissal of Employee — Supervisory — Lower Job — Findings — Matter</italic><italic>of Law — Justification — Conclusion.</italic> In hearing before Civil Service Commission involving dismissal of employee from his supervisory position and ordering him installed in a lower job, Supreme Court cannot say, as a matter of law, that, taken together, the findings of fact made by the Commission do not justify the ultimate conclusions made by the Commission, namely, that respondent was not the type of employee who should hold a supervisory position in the classified service.

1. <bold>INDECENT LIBERTIES</bold> — <italic>Interrogation — Police — Motion to Suppress —</italic><italic>Arrest — Waiver of Counsel — Statement — Freely Given.</italic> Where defendant brought interlocutory appeal from decision of district court denying his motion to suppress statement made by him to interrogating officers following his arrest for crime of indecent liberties contending that he did not knowingly or intelligently waive his right to counsel during the interrogation, and trial court found that defendant's waiver of counsel and statement sought to be suppressed were voluntarily given, <italic>held</italic>, reviewing court is in accord with trial court's finding that waiver of counsel and statement sought to be suppressed were voluntarily given.<page_number>Page 464</page_number>

1. <bold>LIMITATION OF ACTIONS</bold> — <italic>Malpractice — Accrual of Cause of Action —</italic><italic>Strict Construction — Negative.</italic> Colorado does not follow the rule of strict construction in malpractice suits as it relates to the question of the accrual of the cause of action. 2. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>Concealment — Negligence — Cause of Action —</italic><italic>Accrual — Discovery by Patient.</italic> In situations where the defendant physician has <italic>concealed</italic> his negligence the cause of action does not accrue until the patient discovers the negligence, or by the exercise of reasonable diligence should have discovered it. 3. <bold>LIMITATION OF ACTIONS</bold> — <italic>Statute — Medical Malpractice — Bar — Claim —</italic><italic>Question of Fact.</italic> Whether the statute of limitations pertaining to malpractice bars a particular claim is a fact question. 4. <bold>WORDS AND PHRASES</bold> — <italic>Accrue — Meaning — Cause of Action — Maintenance.</italic> When used with reference to a cause of action the word "accrue" means when an action may be maintained thereon; it accrues whenever one person may sue another. 5. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>Negligence — Cause of Action — Accrual —</italic><italic>Discovery by Patient.</italic> In a professional negligence case the cause of action "accrues" when the patient discovers or, in the exercise of reasonable diligence, should have discovered the doctor's negligence. 6. <bold>JUDGMENT</bold> — <italic>Summary — Medical Malpractice — Two Years After Discovery —</italic><italic>Reasonable Diligence — Negligence — Issue of Fact — Action — Timely.</italic> In<page_number>Page 526</page_number> action involving medical malpractice, patient should have his day in court to show, if he can, that he began the action within two years after he discovered or, in the exercise of reasonable diligence, should have discovered the alleged negligence of the doctor; hence trial court erred in awarding summary judgment since issue of fact was presented as to whether action was timely.