Volume 176 — Colorado Reports

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Conviction — Possession — Narcotic Drugs —</italic><italic>Officers — Lack of Probable Cause — Arrest — Seizure — Improper.</italic> Where defendant was convicted of possession of narcotic drugs and now argues on appeal that the contraband recovered from his mouth should have been suppressed as evidence by trial court, <italic>held</italic>, defendant's argument is meritorious since facts indicate that officers lacked requisite probable<page_number>Page 2</page_number> cause to arrest and thus could not lawfully seize the contraband. 2. <italic>Officer — Limited Search — Weapons — Pat Down — Stop and Frisk —</italic><italic>Safety.</italic> An officer may conduct a limited search for weapons (a so-called "pat down" or "stop and frisk") for his own safety when he is justified in believing that he is dealing with a potentially armed and dangerous individual. 3. <bold>ARREST</bold> — <italic>Record — Lack of Evidence — Defendant — Armed — Roll of</italic><italic>Bills — Pocket — Weapon — Seizure — Illegal — Probable Cause — Negative.</italic> Where record is devoid of evidence that defendant may have been armed and is also barren of any indication that roll of bills was removed from defendant's pocket in belief that it was a weapon, <italic>held</italic>, under the circumstances, since roll of bills was illegally seized from coat of defendant, it may not be introduced as evidence at trial, nor may it act as an element in forming the basis of probable cause for subsequent arrest for possession of narcotic drugs. 4. <italic>Search — Precede — Mandatory — Negative — Justification — Improper.</italic> While it is not mandatory that an incident search precede the arrest, so long as reasonably contemporaneous with same, nevertheless, such search may not serve as part of the justification for such arrest. 5. <italic>Lack of Evidence — Sale of Narcotics — Criminal Activity —</italic><italic>Investigation — Lack of Probable Cause — Unlawful — Cellophane-Wrapped —</italic><italic>Contents — Inadmissible.</italic> Where there was nothing to indicate when sale of narcotics had taken place or was to be consummated, and no evidence that officers knew of any previous criminal activity on part of defendant or that defendant was under investigation for any other criminal activity at time of arrest, <italic>held</italic>, under the circumstances, arrest was unlawful for lack of probable cause; consequently, when at time defendant's mouth was forced open, recovery of cellophane-wrapped substance was not incident to lawful arrest and contents of package were therefore inadmissible.

1. <bold>RAPE</bold> — <italic>Information — Step — Course of Conduct — Crime — Attempt to Make</italic><italic>Assault — Eliminate — Attempt to Commit Rape.</italic> Where information charged that defendant engaged in a substantial step in a course of conduct planned to culminate in the commission of the crime of rape, and that defendant, a male person, attempted to make an assault upon a female not his wife and forcibly attempted to rape and carnally know her in violation of pertinent Colorado statutes, <italic>held</italic>, as such, the information was sufficient to charge an attempt to commit rape even after eliminating as surplusage the "attempt to make an assault." 2. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Intent to Commit Rape — Included —</italic><italic>Attempt.</italic> Intent to commit rape is included in the charge of attempt to commit rape whether specifically alleged or not. 3. <bold>RAPE</bold> — <italic>Attempt to Commit — Crime — Statute.</italic> Attempt to commit rape is a crime within the statute pertaining to criminal attempts. 4. <bold>STATUTES</bold> — <italic>Presumption of Constitutionality — Attack — Burden —</italic><italic>Invalidity — Beyond Reasonable Doubt.</italic> A statute is presumed to be constitutional and one attacking its validity has the burden of establishing invalidity beyond a reasonable doubt.<page_number>Page 49</page_number> 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Statute — Criminal Attempts — Definite — Due</italic><italic>Process.</italic> The statute pertaining to criminal attempts does not fail to give fair warning of what is forbidden to men of common intelligence and is not vague and indefinite so as to constitute a deprivation of due process of law. 6. <bold>INSTRUCTION, CRIMINAL</bold> — <italic>Attempted First-Degree Rape — Tendered —</italic><italic>Incorrect.</italic> In prosecution for attempted first-degree rape, defendant's tendered instruction — that proof of the commission of any act or series of acts toward completion of crime does not, in and of itself, warrant any presumption that defendant had specific intent to commit crime of rape — was not a correct statement of law and was properly refused. 7. <bold>CRIMINAL LAW</bold> — <italic>Transcript Required — No Transcript Furnished — Alleged</italic><italic>Error — Not Considered.</italic> Where transcript was required to determine whether evidence justified use of tendered instruction and no transcript was furnished, <italic>held</italic>, under such circumstances, alleged error in refusing to give defendant's tendered instruction would not be considered on appeal.

1. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Presumption of Innocence — Disapproved —</italic><italic>Prospective Effect — Given in Instant Case — No Reversible Error.</italic> Where the following instruction by trial court — that presumption of innocence is not intended to aid anyone who is in fact guilty of crime but is a humane provision of law intended to guard against danger of innocent persons being unjustly punished — was given prior to decision of Supreme Court disapproving of identical instruction and that decision and that decision was to be given prospective effect only, <italic>held</italic>, giving of instruction in instant case was not reversible error. 2. <bold>THEFT</bold> — <italic>Clothing — Back Seat of Automobile — Conviction — Burglary —</italic><italic>Acquittal.</italic> Where there was no evidence to link defendant with burglary at<page_number>Page 161</page_number> men's clothing store, except his possession — shortly after the burglary occurred — of the stolen items of clothing lying on floor of back seat of automobile he was driving, and in his testimony defendant denied any implication in the burglary but stated that when he acquired possession of automobile stolen clothes were in it, <italic>held</italic>, under the circumstances, the jury could have well believed that the evidence linking defendant with the burglary was too weak to convict, but that the evidence of theft was ample; and verdicts of not guilty of burglary but guilty of theft were not inconsistent.

1. <bold>ROBBERY</bold> — <italic>Aggravated — Simple — Degrees — Same Offense.</italic> "Aggravated" and "simple" robbery are but two degrees of the same offense; the former requires that the perpetrator have the intent, if resisted, to kill, maim, or wound the victim; the latter offense does not require this intent. 2. <bold>CRIMINAL LAW</bold> — <italic>Accessory — Guilty — Principal.</italic> One who is an accessory to a crime is guilty of the same degree of crime as the principal. 3. <bold>ROBBERY</bold> — <italic>Instructions — Verdicts — Simple — Lack of Prejudice — Jury —</italic><italic>Aggravated — Both.</italic> Even if it was error for trial judge to submit instructions and verdicts on the offense of simple robbery, the defendants were not prejudiced thereby, notwithstanding there was no charge of simple robbery and no evidence of simple robbery against defendants; actually, on the basis of the record before it, the jury could have convicted both defendants of aggravated robbery. 4. <bold>CRIMINAL LAW</bold> — <italic>Review — Complain — Error — Benefit — Lack of Prejudice.</italic> On review, a defendant cannot be heard to complain of an error which inured to his benefit and which did not prejudice him.<page_number>Page 184</page_number> 5. <italic>Jury — Guilt — Crime — Codefendant — Guilty — Lesser Offense —</italic><italic>Proper.</italic> A defendant cannot complain because the jury found him guilty of the crime which he committed and chose to find his codefendant guilty of a lesser offense. 6. <italic>Assassination — Kennedy — Denial — Mistrial — Lack of Prejudice.</italic> Trial court acted properly in refusing to declare a mistrial where it was satisfied, after examining jury, that no prejudice would result to defendant by virtue of the jury's knowledge of the assassination of Robert F. Kennedy, a well-known national figure. 7. <italic>Mistrial — Discretion — Judge — Review — Undisturbed.</italic> The declaration of a mistrial is within the sound discretion of the trial judge and absent any abuse of that discretion his ruling will not be disturbed on review. 8. <bold>COURTS</bold> — <italic>United States Supreme Court — Chambers v. Maroney — Probable</italic><italic>Cause — Search of Automobile — Proper Without Warrant.</italic> Where police officers had probable cause to search defendants' automobile shortly after their arrest, under the rule stated by the United States Supreme Court in<italic>Chambers v. Maroney</italic>, the search of such automobile without a warrant was proper, and it was not error to admit items found in such search into evidence; especially, where police officers were dealing with a mobile vehicle and had reason to suspect that evidence of the crime was concealed in the vehicle.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Temporary Presence — Companion's Dormitory Room</italic><italic>— Fleeting — Drugs — Objection — Search — No Possessory Interest — Lack of</italic><italic>Standing to Object.</italic> Where defendant's temporary presence in companion's dormitory room which was searched occurred on evening that ended with hospitalization of his companion attributed to his use of LSD, and statements of defendant and his companion to hospital attendants caused investigation which led to preparation of affidavits and resulted in issuance of search warrant and seizure of drugs in companion's dormitory room, <italic>held</italic>, under these circumstances defendant had no standing to object to the search on the basis of his fleeting presence in the dormitory room on evening before search; especially where defendant neither claimed nor had a possessory interest in the premises and had no personal expectation of privacy. 2. <bold>CRIMINAL LAW</bold> — <italic>Suppression Hearing — Possessory Interest — Denial —</italic><italic>Appeal — Contradiction — Testimony — Prohibition.</italic> Where defendant at suppression hearing denied he had a possessory interest in any of the items found in his companion's dormitory room, <italic>held</italic>, on appeal, from denial of his motion to suppress, he would not be allowed to claim a possessory interest that is unsupported by the record and in direct contradiction of his own testimony. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Hearing to Suppress — Defendant — Burden —</italic><italic>Aggrieved Person — Rule.</italic> At hearing to suppress evidence obtained in search of dormitory room, defendant had burden of showing that he was an aggrieved person under the provisions of Crim. P. 41 (e).<page_number>Page 296</page_number>

1. <bold>ASSAULT AND BATTERY</bold> — <italic>Intent to Murder — Cross-Examination —</italic><italic>Impeachment — Prior Felonies — Proper.</italic> In prosecution for assault with intent to murder, where trial court ruled that prosecution, for impeachment purposes, would be permitted to cross-examine defendant pertaining to two prior felony convictions, both occurring more than five years prior to trial, <italic>held</italic>, in so ruling trial court did not err; the ruling did not constitute a violation of defendant's right to equal protection of the law guaranteed under both state and federal constitutions. 2. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Assault With Intent to Murder — Evidence —</italic><italic>Prior Felony Convictions — Limited Purpose.</italic> In prosecution for assault with intent to murder, where evidence of defendant's prior felony convictions were properly elicited on cross-examination, instruction on the limited purpose for which the evidence was admitted was properly given. 3. <bold>CRIMINAL LAW</bold> — <italic>Error — Portion of Trial — Not Reported — Negative.</italic> A defendant cannot bottom error upon an occurrence in a portion of the trial<page_number>Page 317</page_number> which he has specifically agreed was not to be reported. 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Conflict — Function — Jury — Truth — Determination.</italic> Where the evidence is conflicting, it is the function of the jury to determine the truth. 5. <bold>HOMICIDE</bold> — <italic>Assault With Intent to Murder — Evidence — Sufficient —</italic><italic>Verdict.</italic> In prosecution for assault with intent to murder, record reflects ample evidence to support the guilty verdict, notwithstanding defendant's claim that People's case rested solely upon eyewitness testimony, and that testimony in all respects was conflicting and confusing and that defendant presented evidence contradicting the People's evidence.

1. <bold>CRIMINAL LAW</bold> — <italic>State — Right to Appeal — Termination of Prosecution.</italic> The State's right to appeal exists only where the trial court's decision terminates the prosecution. 2. <italic>Prosecution — Not Terminated — New Trial — No Final Judgment —</italic><italic>Ruling — Not Appealable.</italic> Where the prosecution had not been terminated, the court having ordered that the defendant be tried again on the same charge, <italic>held</italic>, under such circumstances there is no "final judgment" and therefore the ruling is not appealable. 3. <italic>Motion for New Trial — Final Judgment — Negative — Not Appealable.</italic> An order granting a defense motion for new trial as a result of jury misconduct does not constitute a final judgment and hence is not appealable.

1. <bold>CRIMINAL LAW</bold> — <italic>Sanity Trial — Denial — Defense Motion for Directed</italic><italic>Verdict — Proper — Order of Proof — Discretionary — Experts — Presumption</italic><italic>of Sanity.</italic> Where, in sanity trial, People put on no evidence initially and only produced its psychiatric expert offering the opinion that defendant was sane after defendant had testified on his own behalf and had offered his own psychiatric evidence on his plea of insanity, <italic>held</italic>, under these circumstances trial court did not err in denying a defense motion for a directed verdict of "not guilty by reason of insanity"; the proceedings were proper since order in which proof comes before jury is discretionary with court; there is no requirement that prosecution initially produce its experts in its case in chief; the presumption of sanity will operate until some evidence to the contrary is presented. 2. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Sanity Trial — Aggravated Robbery —</italic><italic>Conspiracy — Jury — Test — Credibility — General Instruction.</italic> In prosecution for aggravated robbery and conspiracy to commit robbery, trial court, in sanity trial, did not commit prejudicial error by instructing the jury specifically concerning the test of defendant's credibility as a witness while a general instruction on credibility of witnesses was also given. 3. <bold>CRIMINAL LAW</bold> — <italic>Specific Intent — Inferable — Proof — Circumstantial</italic><italic>Evidence.</italic> Specific intent is ordinarily inferable from the facts and proof thereof is necessarily by circumstantial evidence.<page_number>Page 374</page_number> 4. <bold>ROBBERY</bold> — <italic>Aggravated — Conspiracy — Specific Intent — Proof —</italic><italic>Storeowner — Eyewitness — Identification — Brandished Pistol — Exclamation.</italic> Defendant was not improperly convicted of aggravated robbery and conspiracy to commit robbery on ground that there was insufficient evidence to prove beyond reasonable doubt that defendant had specific intent "if resisted to maim, wound or kill"; especially, where evidence showed that storeowner and an eyewitness positively identified defendant as one of the perpetrators of robbery and testified that he had brandished a pistol at the time and exclaimed "I said turn around or I'll kill you." 5. <bold>WITNESSES</bold> — <italic>Facts — Exception — Observe — Physical Activity — Summary —</italic><italic>Sensory Impressions — Proper.</italic> While it is axiomatic that witnesses should relate facts and not conclusions, an exception to this rule exists when a witness has personally observed the physical activity of another, and summarizes his sensory impressions thereof because they can hardly be described in any other manner. 6. <bold>ROBBERY</bold> — <italic>Aggravated — Conspiracy — Eyewitness — Testimony — Getting</italic><italic>Ready to Hit Owner — Qualified — Looked Like.</italic> In prosecution for aggravated robbery and conspiracy to commit robbery, trial court did not err in admitting testimony of eyewitness that defendant "was getting ready to hit owner of store"; especially, where witness qualified her conclusion immediately subsequent to defendant's objection by stating that defendant "looked like" he was going to hit owner. 7. <italic>Aggravated — Conspiracy — Evidence — Sufficient — Jury Question —</italic><italic>Specific Intent.</italic> In prosecution for aggravated robbery and conspiracy to commit robbery, evidence was sufficient to at least present a jury question as to whether defendant possessed the requisite specific intent "to maim, wound or kill" if resisted.

1. <bold>APPEAL AND ERROR</bold> — <italic>Appellate Courts — Bound — Findings of Jury —</italic><italic>Evidence — Correct Instruction.</italic> Colorado appellate courts are bound by the jury's findings where there is sufficient evidence in the record to support the finding, where the jury makes the finding on conflicting evidence, and where the jury has been correctly instructed by the trial court. 2. <italic>Jury — Resolve — Disputed Issues — Credibility — Weight — Inferences</italic><italic>— Supplant — Reviewing Court — Prohibited.</italic> It is the sole province of the jury to resolve disputed issues of fact and its decisions regarding the credibility of witnesses, the weight to be accorded testimony, and the inferences to be drawn from the evidence, are not to be supplanted by the impressions of a reviewing court. 3. <bold>DEATH</bold> — <italic>Wrongful — Questions for Jury — Violent Tendencies of Customer</italic><italic>— Intervention — Reasonable Care.</italic> In wrongful death action, the following were questions for the jury, namely: whether violent tendencies of customer who beat plaintiff's decedent in a lounge were known to defendants, corporate owner of lounge and principal stockholder of corporation; whether defendants had sufficient time and opportunity to physically intervene to protect decedent; and whether defendants exercised reasonable care and diligence to protect decedent.<page_number>Page 385</page_number>

1. <bold>JOYRIDING</bold> — <italic>Theft — Lesser Included Offense — Negative — Attempt.</italic> The crime of joyriding is not a lesser included offense of the crime of theft, nor is attempted joyriding a lesser included offense of attempted theft. 2. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Lesser Included Offense — Test — People</italic><italic>v. Futamata.</italic> The test pertaining to a lesser included offense is set forth in <italic>People v. Futamata</italic> as follows: "If the greater of two offenses includes all of the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater. 3. <italic>Greater Offense — Includes — Lesser Offense — Circumstances.</italic> The greater offense includes a lesser offense when the establishment of the essential elements of the greater <italic>necessarily</italic> establishes all of the elements required to prove the lesser. 4. <bold>THEFT</bold> — <italic>Joyriding — Attempt — Test — Two Crimes — Different — Futamata</italic><italic>v. People.</italic> When the essential elements of joyriding and theft are considered in the light of the test enunciated in <italic>Futamata v. People</italic>, it must be concluded that these two crimes and attempts to commit them are basically different crimes; the greater offense of theft or attempted theft does not contain the essential and critical elements of joyriding or attempted joyriding. 5. <bold>JOYRIDING</bold> — <italic>Definition.</italic> Joyriding is committed when any person, without authority of the owner, wilfully, wantonly or maliciously takes<page_number>Page 415</page_number> possession of, or drives away the automobile of another for the purpose of<italic>temporarily</italic> depriving the owner thereof of his automobile. 6. <bold>THEFT</bold> — <italic>Definition.</italic> Theft occurs when any person obtains control of the property of another and knowingly intends to <italic>permanently</italic> deprive that person of the use or benefit of a thing of value. 7. <italic>Element — Permanently Deprive — Joyriding — Intent — Temporarily</italic><italic>Deprive — Progression — Negative.</italic> An essential element of the crime of theft is formation of intent to permanently deprive the owner of his property and the crime of joyriding requires as an element of proof an intent to just temporarily deprive the owner of his property; and an intent to permanently deprive is not a progression of an intent to temporarily deprive. 8. <bold>JOYRIDING</bold> — <italic>Intent — Mature — Theft — Negative.</italic> The joyriding intent does not mature into the theft intent. 9. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Intent to Commit Theft — Adequate.</italic> A review of the instructions given show that trial court adequately instructed the jury on the intent required to commit theft.

1. <bold>JOINT TENANCY</bold> — <italic>Agreement — Right of Grantor — Alienation of Interest —</italic><italic>Unrestricted Notice — Rights of Grantees.</italic> Even if the written agreement to purchase the house as a joint tenancy had been recorded — which it was not — the provisions in the instrument did not restrict the grantor's right to alienate her interest in the property; consequently, neither actual nor constructive notice of the agreement would have affected the rights of the grantees.

1. <bold>ZONING</bold> — <italic>Lack of Material Change — Neighborhood — Owners — Reliance —</italic><italic>Existing Regulations.</italic> Property owners have a right to rely on existing zoning regulations when there has been no material change in the character of the neighborhood which may require rezoning in the public interest. 2. <italic>Time Period — Changes — Neighborhood — Ordinance — Previous —</italic><italic>Present.</italic> The time period by which neighborhood change are measured is that between the previous valid ordinance and the one effecting the change. 3. <italic>First Case — Amendment — Residential to Commercial — Current —</italic><italic>Degree — Estoppel — City — Negative — Rezoning.</italic> Where issue in first zoning case related to an amendment which would have radically altered character of use of rezoned property from residential to commercial and would have materially affected adjacent property, while current amendment to zoning ordinance was one of degree rather than a change in kind, <italic>held</italic>, under the circumstances, city was not collaterally estopped from rezoning property from single-family residences to multi-family residence, assuming there had been no physical change in neighborhood since decision in first zoning case was rendered. 4. <italic>Neighborhood Changes — Zone Classification — Basis — More Restrictive</italic><italic>— Amendment — Subsequent Ordinance.</italic> The fact that neighborhood changes are found not to justify a particular zone classification amendment at one time does not preclude the use of the same changes as a basis for a more restrictive zone classification amendment in a subsequent ordinance. 5. <italic>Changes — Material — Neighborhood — Rezoning — Single — Multi —</italic><italic>Proper.</italic> Where changes of a material nature had taken place in the character of the neighborhood since annexation ordinances of 1962, <italic>held</italic>, under the circumstance, city council did not act in an arbitrary and capricious manner in rezoning property from single-family zone to multi-family zone. 6. <italic>Statute — Amendment — Vote — Inapplicable — Home Rule City —</italic><italic>Ordinance — Supersede — State Law — Repeal — Vote — Requirement.</italic> Statute<page_number>Page 578</page_number> which required that zoning amendment should not become effective except by favorable vote of three-fourths of all members of municipal legislative body was not applicable to home rule city whose ordinance stated that it had been enacted to encourage the most appropriate use of land throughout the city, and <italic>with the intention of superseding, within the territorial</italic><italic>limits and other jurisdiction of the city, any general law of the state of</italic><italic>Colorado</italic>, and which ordinance repealed the three-fourth majority vote requirement. 7. <italic>Vote Requirement — Inapplicable — Different Ordinances — Different</italic><italic>Results.</italic> The fact that trial judge in former zoning case involving same property as present case enforced the three-fourths vote requirement of the statute did not make such requirement applicable in instant case, especially, since court was not considering the same ordinance; actually, difference in vote provisions of the two ordinances justifies the different results reached on this issue by the two courts. 8. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Home Rule Cities — Constitution — Confers —</italic><italic>Powers — General Assembly — Charters.</italic> Amendment XX to the Colorado constitution confers on home rule cities every power possessed by the general assembly in granting charters generally. 9. <italic>Statute — Power — Cities and Towns — Extra-territorial — Negative.</italic> Statute granting zoning power to statutory cities and towns does not contain any judicial extra-territorial provisions. 10. <italic>Constitution — Local and Municipal — Home Rule — Cities and Towns.</italic> Zoning, under Colorado constitution, art. XX, § 6 pertaining to home rule for cities and towns, is a local and municipal matter. 11. <italic>Property Owners — Challenge — Zoning Ordinance — Due Process.</italic> Property owners challenging zoning ordinance which rezoned KLZ site from single-family residential to multi-family residential were accorded due process, notice and a hearing having been provided.