Volume 177 — Colorado Reports

1. <bold>WATER RIGHTS</bold> — <italic>Decree — First Ditch — River — Second Ditch — Draw —</italic><italic>Plaintiff — No Right.</italic> Where adjudicative decree as to first ditch did not mention draw and gave as the only source a designated river, and decree as to second ditch specifically mentioned that the draw was one of the sources of water, <italic>held</italic>, under the circumstances — since the decree rather than the findings must be scrutinized to ascertain the source of water for the respective ditches — plaintiff, as owner of first ditch, cannot predicate a right to the draw water upon the decree. 2. <italic>Ditch Owner — Justify Interpretation — Priority Decree — Draw —</italic><italic>Statute — Inapplicable.</italic> Where plaintiff ditch owner did not seek to set aside decree but merely sought to justify interpretation of priority decree on ground that state officials charged with administration of water recognized and interpreted the decree to require and permit water from draw to be diverted into owner's ditch, <italic>held</italic> under the circumstances, plaintiff's contention — that since such decree was entered more than 18 years ago, under C.R.S. 1963, 148-19-1, it is entitled to the draw water — is without merit; actually, statute is inapplicable, as it relates to an action to set aside a decree or have it declared invalid whereas here plaintiff seeks to justify interpretation of a decree because water officials have so interpreted it. 3. <italic>Allegation — Defendants — Knowledge — Plaintiff — Water From Draw —</italic><italic>Estoppel — Ineffective.</italic> Where plaintiff ditch owner alleged in complaint that defendant ditch owners knew or should have known of plaintiff's<page_number>Page 7</page_number> practice of taking water from draw, in that this was a matter of public record included in annual reports of water commissioners for many years before defendants purchased their land, and that defendants made their appropriation with such situation in effect, <italic>held</italic>, as such, this was insufficient to estop defendants — who had an adjudicated priority to water from draw — from asserting that plaintiffs, seeking an injunction against defendants, had no right to take water from draw. 4. <italic>Complaint — Allegation — Reliance — Draw — Shareholders — Title —</italic><italic>Adverse Possession — Negative.</italic> Where plaintiff ditch owner's complaint alleged that it had been taking water from river and draw for beneficial use since 1897, that during that time plaintiff had relied on waters from draw when water generally was not available from river and that plaintiff had supplied water to its shareholders in draw and that a portion of the land presently owned by defendant ditch owners, who had an adjudicated priority to water from draw, was so served, <italic>held</italic>, as such, this was not a sufficient allegation of title acquired by adverse possession.

1. <bold>BANKS AND BANKING</bold> — <italic>Board — Duty — Grant or Deny — Charter — Hearing</italic><italic>Date — Opposition — District Court — Other Date — Usurpation.</italic> Where banking board was merely attempting to perform its statutory duty of determining whether to grant or deny a charter and unquestionably had jurisdiction to set a hearing date regarding protestant bank's opposition to the granting of the charter, <italic>held</italic>, under the circumstances, determination by district court that a hearing should be held on some other date was a usurpation of the board's prerogative.<page_number>Page 78</page_number> 2. <italic>Setting New Hearing Date — Grant or Deny — Charter — Beyond Scope</italic><italic>of District Court.</italic> Affirmative relief by injunction and the setting of a new hearing date by banking board with reference to the granting or denial of a charter is beyond the scope of the reviewing function of the district court. 3. <bold>STATUTES</bold> — <italic>Construction — Absurdities — Prohibited.</italic> Court may not construe a statute so as to lead to absurdities, if avoidable. 4. <bold>BANKS AND BANKING</bold> — <italic>Hearing — Determination — District Court —</italic><italic>Unauthorized — Stipulation — Setting Different Date — Nullity.</italic> Since determination by district court that hearing on application for commercial bank charter should be held at some other date constituted a usurpation of banking board's prerogative and was unauthorized, stipulation made under mistaken belief that district court had jurisdiction over matter, setting hearing at a date other than that determined by board was a nullity.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Circumstantial — Conviction — Negative — Innocence.</italic> Where circumstantial evidence alone is relied upon for conviction, a conviction cannot be sustained if this evidence is consistent, on any reasonable hypothesis, with the innocence of the accused. 2. <bold>BURGLARY</bold> — <italic>Theft — Circumstantial Evidence — Consistent — Guilt —</italic><italic>Innocence — Negative.</italic> In prosecution for burglary and theft, when trial court denied defendant's motion for acquittal, it, in effect, ruled that the circumstantial evidence presented by the People was entirely consistent with defendant's guilt and that upon any reasonable hypothesis, this evidence was not also consistent with defendant's innocence. 3. <italic>Theft — Evidence — Support — Conviction — Trousers — Same Color —</italic><italic>Suspect — Fled — Parole.</italic> In prosecution for burglary and theft, evidence supports conviction of defendant for crimes charged; especially where record reflects that defendant who was wearing same color trousers observed by officer on suspect who, after chase, ran from vehicle which was registered in defendant's name and in which stolen merchandise was found notwithstanding defendant's claim that he was in vehicle during progress of burglary but was unaware of happenings because he had been drinking heavily and was asleep and that he had fled from vehicle because he was on parole and did not want to be found in company of other occupants of vehicle. 4. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Record — Absent — Presumption — Flight —</italic><italic>Correct.</italic> Where record did not contain trial court's instructions, reviewing court would presume that flight instruction given by trial court correctly and clearly stated the law and that defendant's objections to giving of flight instruction was that evidence did not support giving it.<page_number>Page 88</page_number> 5. <italic>Flight — Attempt — Avoid — Detection or Arrest — Proper.</italic> Where there is evidence of flight as a deliberate attempt to avoid detection or arrest for a crime just committed, an instruction on flight is proper.

1. <bold>FORGERY</bold> — <italic>Lack of Authority — Circumstantial — Shown.</italic> Lack of authority in a forgery prosecution may be shown circumstantially. 2. <italic>Defendant — Represent — Signature — Forged — Want of Authority —</italic><italic>Conviction.</italic> Where the defendant represents himself as the person whose signature is forged, this circumstance is sufficient to show want of authority and to warrant the defendant's conviction. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Forgery — Money Order — Plan — Scheme — Design —</italic><italic>Both — Similarly Altered — Admission — Proper.</italic> Where money order offered on issue of plan, scheme, and design was passed within three weeks of money order on which forgery prosecution was based and record reveals that both instruments were connected to particular individual, amount of both were similarly altered, and both were passed by defendant, <italic>held</italic>, under the circumstances, admission of money order offered in evidence was not an abuse of discretion. 4. <bold>FORGERY</bold> — <italic>Money Order — Plan — Scheme — Design — Instruction —</italic><italic>Limited Purpose — Proper.</italic> In prosecution for forgery, where trial court admonished jury at time money order was offered and admitted, that the instrument was admitted for sole purpose of showing plan, scheme, and design, and for that purpose only and instructed them that they could not consider evidence of another transaction except as bearing on question of whether defendant had plan or design of which act charged was part, <italic>held</italic>, under the circumstances, trial court adequately fulfilled its duty to instruct jury as to limited purpose for which second money order was to be considered. 5. <italic>Refusal — In Camera Hearing _ Money Order — Plan — Design — Scheme</italic><page_number>Page 93</page_number><italic>— No Error.</italic> In prosecution for forgery trial court's refusal to conduct an in camera hearing as to the admissibility of the second money order on the issue of proof of plan, design and scheme was not error. 6. <italic>Admission — Carbon Copies — Money Orders — Originals — Altered —</italic><italic>Proper.</italic> Admission of carbon copies of altered money orders for purpose of showing that the originals had been altered to increase their value was not error. 7. <bold>WITNESSES</bold> — <italic>Prior Felony Convictions _ Impeach — Admissible.</italic> The evidence of prior felony convictions is admissible to impeach a defendant who voluntarily takes the stand and testifies in his own behalf.

1. <bold>STATUTES</bold> — <italic>Clause — Plain — Unambiguous — Construction — Unnecessary.</italic> When the natural significance of a clause is plain and unambiguous and involves no absurdity, construction is unnecessary. 2. <bold>CIVIL SERVICE</bold> — <italic>Some Evidence — Some Particulars — Support — Findings</italic><italic>and Order — Insufficient — Discharge.</italic> If there is only some evidence in some particulars to support findings and order of Civil Service Commission, it is insufficient to justify affirmance on appeal of discharge of a civil service protected employee. 3. <italic>Review — Transcript — Exhibits — Commission — Appellate Court —</italic><italic>District Court — Remand — Negative.</italic> Where review in lower court of dismissal of civil service protected employee was only of transcript and exhibits presented at Civil Service Commission hearing, appellate court was in as good a position as district court to review the record, and would not remand case to lower court for determination of whether dismissal was supportable by substantial evidence when record is considered as a whole. 4. <bold>OFFICERS</bold> — <italic>Charges — Chief Psychologist — Retardation Center — Trivial</italic><italic>— Substantial Cause — Negative — Personality Conflict — Dismissal —</italic><italic>Improper.</italic> Where evidence on specific charges brought against appellant, chief psychologist of mental retardation center, was technical and trivial and was not supportive of substantial cause on the whole record, but<page_number>Page 258</page_number> revealed, rather, a personality conflict between appellant on one side, and his superior and a few co-workers of equal status on the other, and this situation was aggravated by appellant's heavy foreign accent, which increased misunderstanding, <italic>held</italic>, under the circumstances, appellant's dismissal cannot stand.

1. <bold>ARREST</bold> — <italic>Officer — Without Warrant — Offense — Reasonable Ground —</italic><italic>Statute.</italic> Under C.R.S. 1963, 39-2-20, an officer may make an arrest without a warrant when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it. 2. <bold>WORDS AND PHRASES</bold> — <italic>Probable Cause — Reasonable Grounds — Equivalent.</italic> "Probable Cause" and "reasonable grounds" are substantially equivalent in meaning. 3. <bold>ARREST</bold> — <italic>Without Warrant — Probable Cause — Existence.</italic> Probable cause for arrest without warrant exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. 4. <italic>Check — Department Store — Shirt — Owner — Report — Police —</italic><italic>Probable Cause — Reasonable Grounds.</italic> Where owner of department store, suspecting that check given his clerk by purchaser of shirt was bad, went to bank and presented check for payment only to find that account on which check was drawn had been closed, and then proceeded to police department and reported what had transpired, <italic>held</italic>, under the circumstances, police had probable cause to arrest defendant, in that they knew that an offense had been committed and had reasonable grounds to believe that defendant had committed that offense. 5. <bold>SEARCHES AND SEIZURES</bold> — <italic>Arrest — Probable Cause — Home — Forged Check —</italic><italic>Search — Valid.</italic> In situation where police had probable cause to arrest defendant — in that they knew that an offense had been committed and had<page_number>Page 268</page_number> reasonable grounds to believe that defendant had committed the offense — search of defendant on his arrival at police station, after being arrested in home of mother of person on whose account forged check was drawn, was valid. 6. <bold>WITNESSES</bold> — <italic>In-court Identification — Independent Source — Apart —</italic><italic>Illegal Confrontation.</italic> Even if there has been an illegal confrontation, a witness may make an in-court identification if there is an independent source upon which to base such an identification apart from the illegal confrontation. 7. <bold>FORGERY</bold> — <italic>Passing of Check — In-court Identification — Independent</italic><italic>Source — Admissible.</italic> In prosecution resulting in defendant's conviction of forgery in the passing of a check, record supports trial court's finding that in-court identification had independent source separate and apart from illegal confrontation, especially, where witness had a direct one-on-one confrontation for five to ten minutes in department store at time check was passed; and this was sufficient to show that witness had an independent basis upon which to base her identification of defendant; hence, the in-court identification was proper and admissible.

1. <bold>HOMICIDE</bold> — <italic>First-Degree Murder — Publicity — Extensive — Prejudicial —</italic><italic>Negative — Fair Trial — Presumption.</italic> In prosecution for first-degree murder, record reflects that publicity in instant case was not so extensive, pervasive, and prejudicial that denial of a fair trial may be presumed. 2. <bold>CRIMINAL LAW</bold> — <italic>Absence — Massive Publicity — Nexus — Denial of Fair</italic><italic>Trial — Proof.</italic> In the absence of massive publicity that could be said to have contaminated the community, the defendant must establish a nexus between the publicity and the alleged denial of a fair trial. 3. <bold>HOMICIDE</bold> — <italic>First-Degree Murder — Change of Venue — Denial — Failure to</italic><italic>Show — Publicity — Adverse — Second Change — Unnecessary.</italic> In prosecution for first-degree murder, defendant's contention that trial judge erred in refusing to grant a change of venue is without merit. 4. <bold>CRIMINAL LAW</bold> — <italic>Change of Venue — Pretrial Publicity — Adverse Effect —</italic><italic>Jury — Reversal — Supreme Court.</italic> Supreme Court would not reverse denial of defense motion for change of venue by reason of pretrial publicity where no showing was made that newspaper publicity had an adverse effect upon the jury panel or a portion thereof. 5. <italic>Change of Venue — Failure to File — Affidavits — Counsel — Violation</italic><italic>of Rule — Notice.</italic> Where defense counsel failed to file requisite affidavits with application for change of venue until day motion came on to be heard, <italic>held</italic>, under these circumstances, defense counsel violated rule requiring application for change of venue to be supported by affidavits and<page_number>Page 355</page_number> that reasonable notice be given prosecuting attorney to allow time for filing counter-affidavits. 6. <italic>First-Degree Murder — Conviction — Preliminary Hearing — Failure —</italic><italic>Vitiate — Negative — Jurisdiction.</italic> There is no constitutional right to a preliminary hearing, and failure to grant a preliminary hearing does not vitiate a conviction for first-degree murder; accordingly, trial court did not lack jurisdiction in the absence of a preliminary hearing. 7. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Valid — Grand Jury — Protection —</italic><italic>Negative.</italic> The Colorado practice of effecting a charge through an information is a valid one; and proceedings are not void constitutionally because a defendant is not afforded the protection of a grand jury. 8. <bold>COURTS</bold> — <italic>United States Supreme Court — Miranda v. Arizona — Silent —</italic><italic>Police — Forever Foreclosed — Negative.</italic> In prosecution for first-degree murder, trial court did not err by admitting statements elicited from defendant after he had indicated a desire to remain silent; neither is there any merit to the argument that once defendant had elected to remain silent, the police were forever foreclosed from questioning or talking to him about any phase of the criminal conduct that was charged; nor does the United States Supreme Court case of <italic>Miranda v. Arizona</italic> lend support to such argument. 9. <bold>HOMICIDE</bold> — <italic>First-Degree Murder — Miranda Warning — Rights — Waiver —</italic><italic>Admission — Incriminating Statements.</italic> In prosecution for first-degree murder, record reflects that defendant was given proper <italic>Miranda</italic> warning and knew what his rights were; moreover, record amply supports a waiver of those constitutional rights and the admission of the incriminating statements made by him. 10. <bold>ARREST</bold> — <italic>Federal Warrants — Support — Affidavits — Complaint — Alone</italic><italic>— No Facts — Probable Cause.</italic> In prosecution for first-degree murder, where independent federal warrants were supported by affidavits which squared with all constitutional requirements <italic>held</italic>, as such, they provided a legitimate basis for defendant's arrest; the arrest was valid notwithstanding the fact that the state murder complaint, standing alone, would not support an arrest warrant because no facts were set forth to establish probable cause; and defendant's claim that the officers were required to have the arrest warrants with them is wholly without merit.<page_number>Page 356</page_number> 11. <bold>SEARCHES AND SEIZURES</bold> — <italic>Trunk — Car — Removal of Footlocker — Sister —</italic><italic>Consent.</italic> Officers did not lack authority to search trunk of defendant's sister's car in which defendant was riding with sister at time of arrest and to remove defendant's footlocker therefrom where sister had consented to the procedures followed and cooperated with the FBI in making the arrest possible. 12. <bold>CRIMINAL EVIDENCE</bold> — <italic>First-Degree Murder — Bloody Fingerprint —</italic><italic>Fingerprints — Present — Access.</italic> In prosecution for first-degree murder, no prejudice was shown by defendant's contention that a bloody fingerprint was withheld from him; especially, where record disclosed that fingerprints were present in court and that defendant had ready access to the evidence. 13. <italic>Circumstantial — Resolution — Jury.</italic> The machinations of every circumstantial evidence case, in the last analysis, has to be resolved by the jury. 14. <bold>HOMICIDE</bold> — <italic>First-Degree Murder — Evidence — Beyond Reasonable Doubt —</italic><italic>Death — Automatic Pistol — Denial — Acquittal — Proper.</italic> In prosecution for first-degree murder, where evidence presented to jury established beyond reasonable doubt — that victims died as result of wounds inflicted with .45 caliber automatic pistol; defendant admitted that gun which inflicted fatal would was his, and ballistic tests confirmed his statement; defendant was in possession of victim's camper that bore irrefutable marks of violence; a bullet retrieved from camper bore tell-tale marks identifying the bullet as having been fired from defendant's .45 caliber automatic, <italic>held</italic>, under these facts, defendant's conduct together with a myriad of other incriminating circumstances, provide the links that forge a chain which supports jury's verdict and trial judge's denial of defendant's motion for judgment of acquittal.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Inadmissible — Accused — Commission — Independent —</italic><italic>Offense — Exception — Proof — Element.</italic> It is a general rule that evidence is not admissible which shows or tends to show the accused has committed a crime wholly independent of the offense for which he is on trial; however, an exception exists where the evidence of another offense tends to prove some element of the one for which the accused is being tried. 2. <bold>RAPE</bold> — <italic>Forcible — Kidnapping — Assaults — Other Sexual Act — Admissible</italic><italic>— Part of Res Gestae.</italic> Where defendant was convicted by a jury of forcible rape and now asserts error on the ground that trial court failed to give jury instruction in reference to limited purpose for which evidence of forcible abduction and other sexual act were admissible, contending that this was evidence of other crimes, <italic>held</italic>, defendant's assertion is without merit; actually, all of the acts which defendant asserts were evidence of other crimes were a part of the <italic>res gestae;</italic> the kidnapping, the assaults, and the other sexual act tended to prove the force element of rape; these "other crimes" were not <italic>wholly independent</italic> of the offense charged, hence, they were properly admitted.

1. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Martinez v. People — Disapproval — Presumption</italic><italic>of Innocence — Prospective.</italic> Colorado Supreme Court decision of <italic>Martinez v.</italic><italic>People</italic>, <cross_reference>172 Colo. 82</cross_reference>, <cross_reference>470 P.2d 26</cross_reference> (1970), which specifically disapproved the giving of particular instruction on presumption of innocence in a criminal prosecution, is prospective in effect and does not apply to cases such as instant one which precedes the decision. 2. <bold>COURTS</bold> — <italic>United States Supreme Court — United States v. Wade —</italic><italic>Stovall v. Denno — Armed Robbery — Testimony — Witnesses — In-Court</italic><italic>Identification — Independent — Proper.</italic> Where testimony of two witnesses at <italic>in camera</italic> hearings showed that both witnesses had ample opportunity to get a good look at defendant while armed robbery was being committed, and where trial judge found, based on such <italic>in camera</italic> testimony, that photographic and line-up identification procedures were proper, did not taint the in-court identification, and had an independent basis, <italic>held</italic>, under these circumstances it is clear that trial court complied with dictates of United States Supreme Court decisions of <italic>United States v.</italic><italic>Wade</italic> and <italic>Stovall v. Denno</italic>, and that the in-court identifications that were made by the two witnesses were entirely proper. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Right to Counsel — Photographic Identification —</italic><italic>Does Not Attach — Investigatory Stage.</italic> The right to counsel relating to photographic identification does not attach when a criminal case is still in the investigatory stage. 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Photographic Identification — Approval.</italic> Photographic identification must be approved if procedures used are not suggestive and do not coerce identification.<page_number>Page 398</page_number> 5. <italic>Photographic Identification — Investigatory Stage — Exclusion —</italic><italic>Photographs — Per Se — Constitution — Negative.</italic> Where it was clear that photographic identification took place during investigatory stage of proceedings and before finger of guilt pointed to defendant, and where, at time defendant's photograph was identified, defendant was not in custody and charges against him had not been made, <italic>held</italic>, under the circumstances,<italic>per se</italic> exclusion of photographic identification testimony was not mandated by Sixth and Fourteenth Amendments to United States Constitution, notwithstanding absence of counsel at time such identification was made.

1. <bold>BURGLARY</bold> — <italic>Assumption — Man — Entry — Office — Before — Secretary —</italic><italic>Defendant — Conviction — Reversal — Theft — Insufficiency of Evidence.</italic> Even assuming for purpose of the case that man who entered office before secretary found that her billfold was missing was the defendant — who claimed that he entered the office with intent to find the key to the men's room — nevertheless, defendant's conviction for second-degree burglary cannot stand in view of insufficiency of evidence to show intent to commit crime of theft at time he entered the room involved. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Facts — Consistent — Innocence — Burglary — Guilt —</italic><italic>Conviction — Negative.</italic> Where facts adduced at trial were just as consistent with theory of innocence of burglary as of guilt, under such circumstances, the conviction cannot stand. 3. <bold>BURGLARY</bold> — <italic>Trespass — Time of Entry — Immaterial — Entry — Office —</italic><italic>Intent — Theft — Not Determinative.</italic> The fact that the defendant may have committed the trespass at the time he entered the office was immaterial and not determinative of whether he entered the office with intent to commit theft.