Volume 175 — Colorado Reports

1. <bold>APPEAL AND ERROR.</bold> — <italic>Ruling — Termination of Rights — Child — Adoption —</italic><italic>Stepparent — Argument — Unable to Review — Lack of Transcript.</italic> Argument of respondent, natural father of child seeking review of trial court's ruling terminating his rights over child and decreeing child eligible for adoption by stepparent — that court erred in finding that his failure to provide support was without cause — cannot be reviewed by Supreme Court since record does not contain transcript of testimony taken in trial court; actually, respondent failed within sixty days to file a reporter's transcript or seek an extension of time, and trial court thereupon ordered transcript stricken from record on error. 2. <bold>ADOPTION</bold> — <italic>Statute — Interpretation — Available for Adoption — Trial</italic><italic>Court — Correct — Constitutional Rights — Violation — Negative.</italic> Trial court acted correctly in interpreting pertinent statute — as to when a child is available for adoption — to require only a showing that the natural parent has failed without cause to provide reasonable support for a child for one year or more when termination of a natural parent's rights is sought in a stepparent adoption; actually, there was no violation of respondent, natural father's constitutional rights.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Fingerprint — Tie — Crime — Conviction —</italic><italic>Sufficient.</italic> Fingerprint evidence may in some instances be sufficient in and of itself to support a conviction, where that evidence is tied directly to the commission of the crime and no explanation other than guilt exists. 2. <bold>BURGLARY</bold> — <italic>Fingerprint Evidence — Glass Window — Clothes Rack — Women's</italic><italic>Store — Evidence — Insufficient — Speculation — Conjecture.</italic> Where burglary conviction was supported by fingerprint evidence only and it was not shown whether fingerprints, which were identical to those of defendant and which were found on fragments of glass window situated some three to four feet from clothes rack in women's apparel store, were on inside or outside of glass or whether fingerprints were impressed before or after burglary,<italic>held</italic>, under these circumstances, conviction could not stand; the evidence was insufficient and leaves too much to speculation and conjecture and is equally consistent with a hypothesis of innocence as with that of guilt.

1. <bold>ARREST</bold> — <italic>Suspicious Demeanor — Occupants of Car — Marijuana Smoke —</italic><italic>Probable Cause — Warrantless — Officer — Search — Vehicle — Incident —</italic><italic>Proper.</italic> Where record reflects combination of suspicious demeanor of three occupants of car and subsequent odor of marijuana emanating from within car moments after occupants had exited, <italic>held</italic>, this was a sufficient basis upon which to predicate probable cause for the belief that the offense of possession of marijuana had been committed; it justified trial court's conclusion that a reasonably cautious and prudent police officer would have reasonable grounds to believe that an offense had been committed for which an arrest could be made without a warrant; and search of vehicle by police made substantially contemporaneously with valid warrantless arrest was permissible as an incident to such arrest. 2. <bold>SEARCHES AND SEIZURES</bold> — <italic>Suspicious Demeanor — Odor of Marijuana —</italic><italic>Justification — Arrest — Probable Cause — Search — Car — Contraband.</italic> Circumstances — such as suspicious demeanor of three occupants of car and subsequent odor of marijuana emanating from car within moments after such occupants had exited — which justify a valid arrest may also furnish probable cause to search such vehicle for contraband. 3. <bold>ARREST</bold> — <italic>Probable Cause — Offense — Committed — Person.</italic> Officers must have had not only probable cause to believe an offense had been committed, but also that the person to be arrested had committed it.<page_number>Page 141</page_number> 4. <italic>Mere Suspicion — Justification — Negative.</italic> Mere suspicion does not justify a warrantless arrest. 5. <italic>Lack of Justification — Marijuana — Car — Officer — Surmise —</italic><italic>Ownership — Lack of Probable Cause — Arrest — Invalid — Seizure — Water</italic><italic>Pipe — Roach Clip — Suppressed.</italic> Where the facts and circumstances concerning defendant, did not rise to the dignity of probable cause — the only circumstances to tie defendant to the unlawful conduct of the three occupants of his car was his ownership of the vehicle, but he was not a participant in the alleged unlawful conduct which gave rise to the initial arrests, which in turn justified the search of the vehicle — and officer could only surmise that marijuana found in car belonged to defendant and he had no other facts upon which to connect defendant with the marijuana,<italic>held</italic>, under the circumstances there was no justification for defendant's warrantless arrest; hence, "plain view" seizure of water pipe and roach clip during such arrest must be suppressed.

1. <bold>WATER RIGHTS</bold> — <italic>Users of Water — Ditch — Tenants in Common — Negative.</italic> Users of water from supply ditch — who diverted and used full 25.22 cfs over the years whenever it was available and diverted as much as they could at other times, subject to the rights of senior appropriators — were not tenants in common of water rights in question. 2. <italic>Tenants in Common — Irrigation — Owners — Lands — Same — Use of</italic><italic>Water.</italic> Excluding consideration of stockholders in mutual ditch companies, ordinarily, for persons to be tenants in common in an irrigation water right, they must be owners as tenants in common of the lands upon which the water is used. 3. <italic>Interest — Conveyance — Abandonment — Lack of Use — Years — Quiet</italic><italic>Title.</italic> In action to quiet title to a 7/25ths interest in a decree of 25.22 cubic feet of water per second of time to a supply ditch, reviewing court holds as a matter of law that the 7/25ths interest conveyed by decree owner to named interest holder, now deceased, was abandoned; especially, where record reflects that holders of this water right made no use of it for at least 34 years, and there was not a shred of evidence to negate abandonment; actually, abandonment was to the stream and not to the other users in the ditch. 4. <bold>PLEADING</bold> — <italic>Quiet Title — Water Rights — Defenses — Answer —</italic><italic>Abandonment — Amendment — Denial of Motion.</italic> In action to quiet title to an interest in<page_number>Page 261</page_number> a decree of water rights, where defenses in answer were to put plaintiffs on their proof and to show that the water had been abandoned, trial court properly — acting within its discretion — denied the motion after trial for amendment of answer to plead adverse possession. 5. <bold>NEW TRIAL</bold> — <italic>Findings of Fact — Conclusion — Decree — Date — Order —</italic><italic>Judgment — Entry — Rules — Extension of Time — Permissible Period.</italic> Although findings of fact, conclusions of law and decree bore date of February 26, 1968, yet, where judge under date of March 14, 1968 entered an order directing that judgment theretofore signed be entered by clerk of court in judgment docket book pursuant to rules, <italic>held</italic>, under these circumstances, judgment was not "entered" until after entry of such order, and court's extension of time, in such order, for filing motion for new trial was made within permissible period of ten days after entry of judgment.

1. <bold>LICENSES</bold> — <italic>Mobile Home Dealer — Sales Tax Credit — Deficiency — Notes —</italic><italic>Entitled — Negative.</italic> Mobile home dealer was not entitled to sales tax credit for deficiency remaining on installment notes which had become delinquent and which the dealer had taken back from bank and on which dealer had repossessed the homes. 2. <italic>Trailer Coaches — Mobile Homes — Registering — Taxing — Licensing —</italic><italic>Transferring — Selling — Mortgaging — Motor Vehicles.</italic> For purposes of registering, taxing, licensing, transferring, selling, and mortgaging, trailer coaches and mobile homes have been expressly treated by the legislature as motor vehicles. 3. <italic>Motor Vehicles — Sales Tax Statutes — Mobile Homes — Included.</italic> The sales tax statutes specifically provide for a tax upon motor vehicles, C.R.S. 1963, 138-5-13, and mobile homes are meant to be included as motor vehicles under such provisions.<page_number>Page 297</page_number> 4. <bold>TAXATION</bold> — <italic>Sales Tax — Levy — Sales Transaction — Transfer — Property —</italic><italic>Negative.</italic> In Colorado, the sales tax is levied upon the sales transaction, and not upon the property transferred. 5. <italic>Sales Tax — Burden of Payment — Purchaser — Basis — Percentage of</italic><italic>Consideration.</italic> The burden of paying the sales tax falls upon the purchaser or consumer, and is based upon a percentage of the consideration paid by such purchaser. 6. <italic>Sales Tax — Imposition — Dealer — Negative — Agent to Collect.</italic> The Colorado sales tax is not imposed on the dealer who is simply the state's agent to collect.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Short Check — Guilty Plea — Sentenced — Denial —</italic><italic>Speedy Trial — Waiver.</italic> Where defendant had already pleaded guilty to charge of short check felony and had been sentenced when his motion to dismiss — treated as one for post-conviction relief — was filed, <italic>held</italic>, under the circumstances, defendant waived any argument he may have had concerning denial of speedy trial. 2. <bold>CRIMINAL PROCEDURE</bold> — <italic>Motion to Dismiss — Post-Conviction — Guilty Plea</italic><italic>— Short Check — Speedy Trial — Lack of Allegation.</italic> In proceeding on motion to dismiss treated as motion for post-conviction relief, contention of defendant — that he entered guilty plea to charge of short check felony in reliance on promise that after he entered plea trial court would consider motion to dismiss for lack of speedy trial — would not be considered where defendant made no such allegation in his motion to dismiss and there was nothing in record which would support inference that any such promise might have been made.

1. <bold>JUDGMENT</bold> — <italic>Summary — Error — Fertilizer — Genuine Issues of Fact —</italic><italic>Agency — Warranties — Disclaimer.</italic> In action by seller's assignee to recover for value of fertilizer applied to buyer's farm wherein buyer counterclaimed for loss of crop value, trial court erred in granting summary judgment in favor of assignee since genuine issues of fact existed as to whether seller was an agent of assignee, what warranties were made pertaining to fertilizer, whether there was a disclaimer of warranty and, if so, whether such disclaimer was called to attention of buyer. 2. <italic>Summary — Denial — Litigant — Right to Trial — Controversy — Facts.</italic> A summary judgment denied a litigant the right to trial of his case and should therefore not be granted where there appears any controversy concerning material facts. 3. <bold>ASSIGNMENTS</bold> — <italic>Assignee — Takes — Claim — Assignor.</italic> An assignee takes generally only as good a claim as his assignor had. 4. <italic>Assignee — Subject to Equities and Defenses — Existing — Time of</italic><italic>Notice.</italic> The assignee is generally subject to all equities and defenses existing at the time of notice of assignment.

1. <bold>ARREST</bold> — <italic>Officers — Investigation — Theft — Check Offenses — Strong</italic><italic>Odor of Marijuana — Smoke — Doorway — Probable Cause.</italic> Where officers went to defendant's residence to investigate theft and check offenses and question defendant and were confronted with the strong odor of burning marijuana and smoke emerging from doorway to one defendant's residence,<italic>held</italic>, these facts were sufficient to constitute probable cause for arrest of defendant on charge of illegal possession and use of narcotic drugs. 2. <bold>SEARCHES AND SEIZURES</bold> — <italic>Exception — Rule — Warrants — Incidents of</italic><italic>Lawful Arrests.</italic> Among the well recognized exceptions to the general rule<page_number>Page 422</page_number> requiring search warrants are searches conducted as incidents of lawful arrests, whether with or without an arrest warrant. 3. <italic>Smoke — Odor — Marijuana — Arrest — Ash Tray — Area of Immediate</italic><italic>Control — Seizure — Incident to Arrest — Probable Cause — Issuance of</italic><italic>Warrant.</italic> Where officers, after observing smoke and identifying odor as that of burning marijuana, entered room and arrested defendants, and ash tray and its contents were located within easy reach of either or both of defendants, reviewing court concludes that contents of these containers were within that area over which defendants exercised "immediate control" and therefore seizure was properly within scope of legitimate "search incident to an arrest"; hence, there was no error in utilizing the evidence thus recovered to assist in establishing probable cause for issuance of search warrant for premises in question. 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Conviction — Proper — Unlawful Use — Marijuana —</italic><italic>Circumstantial.</italic> A conviction for unlawful use and/or possession of marijuana may be predicated on circumstantial evidence. 5. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Marijuana — Illegal Possession — Place —</italic><italic>Partially Under Dominion — Conviction — Proper.</italic> A conviction of illegal possession of marijuana may also be based upon evidence that the marijuana, while not found on the person of the defendant, was at a place at least partially under his dominion and control. 6. <italic>Possession — Need Not Be Exclusive — Joint — Control.</italic> Possession of marijuana sufficient to sustain conviction need not be exclusive and the substance may be possessed jointly by a person and another without a showing that the person had actual physical control thereof. 7. <bold>ARREST</bold> — <italic>Officers — Observe — Smoke — Odor — Marijuana — Defendant —</italic><italic>Center of Room — Females — Incense.</italic> Where police officers, following arrest of one defendant, entered residence and observed smoke and identifying odor of marijuana emanating from the residence, <italic>held</italic>, under the circumstances such officers were justified in arresting other defendant who was seen standing in center of room with two females one of whom was attempting to light incense.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Review — Writ of Error — Again — Post-Conviction —</italic><italic>Improper.</italic> In a criminal case, issues previously reviewed by writ of error cannot again be raised in a Rule 35(b) proceeding to vacate judgment and sentence.