Volume 178 — Colorado Reports

1. MUNICIPAL CORPORATIONS — Zoning Map Amendment — Referendum — Charter. Zoning map amendment passed by city council may be subjected to referendum<page_number>Page 26</page_number> procedures outlined in City Charter. 2. Charter — Referendum — Application — All Ordinances — Zoning — Negative — Read — Exception — Prohibited. Where charter provides that referendum shall apply to <italic>all ordinances</italic>, except three types — none of which encompasses zoning — reviewing court cannot read into the provision an exception which is not there. 3. ZONING — Map — Amend — Due Process — Notice — Hearing — Council — Resolution. The due process provisions of notice and hearing alluded to in council's resolution are proper and must be followed when amending zoning map by council action. 4. CONSTITUTIONAL LAW — Due Process — One Manner — Change — Council — Preclusion — Other Procedures — Referendum — Negative. The fact that due process requirements may be met in one manner when the change is by council action does not preclude other procedures from meeting due process requirements under referendum. 5. INITIATIVE AND REFERENDUM — Fundamental Right. The referendum is a fundamental right of the people of Colorado. 6. ZONING — Ordinance — Amend — Map — Deprivation — Oener — Use — Invalid. Under no circumstances could ordinance amending zoning map in a way that would deprive owner of all economic use be upheld.

1. INSURANCE — Automobile — Window — Shoot — Rabbits — Shotgun — Accidental Discharge — Occurrence — Policy — Negative. Where insured's companion sustained injuries when shotgun with which insured had intended to shoot rabbits from window of automobile accidentally discharged after insured had brought shotgun back into automobile after observing another automobile approaching from opposite direction, and only relationship of vehicle to accident was presence of tort-feasor and injured person in automobile at time of infliction of injuries, held, under these circumstances Supreme Court does not regard such an occurrence as "arising out of the ownership, maintenance or <italic>use</italic> of the owned automobile," as contemplated by the automobile liability insurance contract. 2. WORDS AND PHRASES — "Arising Out of the Use" — Automobile Liability Policy — Construction — Meaning. The phrase "arising out of the use" in automobile liability policies has generally been construed broadly and comprehensively, and to mean "originate from," "grow out of," or "flow from." 3. INSURANCE — "Arising Out of the Use" — Connection — Injury — Use of Vehicle. Generally, there must be a causal relation or connection between the injury and the use of the vehicle in order for the injury to come<page_number>Page 59</page_number> within meaning of the automobile policy phrase "arising out of the use" of a vehicle. 4. Use — Automobile Liability Policy — Foreign — Inherent Purpose — Negative. Use, as contemplated by automobile liability policy, means <italic>use</italic><italic>of a vehicle as such</italic>, not a use foreign to its inherent purpose, to which the vehicle might conceivably be put.

1. CONTEMPT — Criminal — Duty — Appear — Date Set for Trial — Failure to Appear — Guilty. An attorney has a duty to the court to appear on the date<page_number>Page 119</page_number> set by the court for trial; and when he deliberately and willfully causes inconvenience and delay by failing to advise the court that he cannot be present and by failing to appear at the appointed time, he may be adjudged guilty of criminal contempt. 2. Attorney — Indirect — Outside — Immediate Presence of Court. Contempt of court by attorney for failure to appear in court at appointed time is indirect where the determination thereof involves matters which occurred outside of the immediate presence of the court when sitting as such. 3. Charge — Failing to Appear — Appointed Time — Court — Hearing — Necessary. Where matters involving intent of attorney charged with contempt for failing to appear in court at appointed time happened outside the presence of the court, it was necessary to hold a hearing on the stated charge. 4. CONSTITUTIONAL LAW — Contempt — Procedure — Due Process. A procedure which accords with due process of law is essential in a criminal contempt hearing. 5. CONTEMPT — Willful Intent — Inconvenience — Delay — Court — Finding — Failure to Appear — Determination — Intent — Negative — New Trial. Willful intent to inconvenience and delay the court is essential to a finding of contempt where an attorney fails to appear at appointed time; hence, where trial court failed to determine defendant's intent, judgment would be reversed and remanded for a new trial. 6. JUDGES — Cite — Attorney — Indirect Contempt — Trial Judge — Prosecutor — Act — Error. It is error for a judge who cites an attorney for indirect contempt to also act as trial judge and prosecutor in the later hearing on the charge. 7. Contempt — Indirect — Request — Fellow Judge — Substitution — Proper. In an indirect contempt case involving an attorney, where conditions do not make it impracticable, or where the delay may not injure public or private right, judge called upon to act in a case of contempt in which he is involved may, without flinching from his duty, properly ask that one of his fellow judges take his place. 8. Prosecutor — Judge — Both — Due Process — Sham. The semblance of due process is a sham when the judge is both prosecutor and judge.<page_number>Page 120</page_number> 9. CONTEMPT — Criminal — District Attorney — Prosecute — Proper. In a case involving criminal contempt, the district attorney is the proper officer to prosecute the case. 10. Citation — Failure to Appear — Specific — Sufficient. In contempt proceeding, where citation recited that defendant was to appear on a day certain to show cause why he should not be adjudged in contempt of court for failure to appear in court as directed and ordered, held, as such, this citation was sufficiently specific to enable defendant either to defend or explain in mitigation his absence from court on specific date.

1. STATES — Injury — Machinery — Die-Setter — Violation — Industrial Commission — Duty to Inspect — Statute — Dismissal — Sovereign Immunity. In action by die-setter against Industrial Commission and its three commissioners alleging that machine he was using in plant had malfunctioned and severely injured him; that this and other machines in plant had malfunctioned in the past and caused many severe and permanent injuries to employees; and that his injuries had resulted from Commission's failure to perform statutory duty to inspect any kind of an establishment wherein laborers are employed for purpose of protecting employees or guests against dangers arising from imperfect or dangerous machinery, reviewing court affirms dismissal of complaint on basis of sovereign immunity insofar as respondent Commission is concerned. 2. Evans. v. Board of County Commissioners — Sovereign Immunity — Prospective. The case of Evans v. Board of County Commissioners,<cross_reference>174 Colo. 97</cross_reference>, <cross_reference>482 P.2d 968</cross_reference> (1971) — except for plaintiffs in triad of cases then decided — made the abolition of governmental immunity prospective in its application, commencing July 1, 1972. 3. LABOR RELATIONS — Duty — Industrial Commission — Inspection — Establishments — Machinery — Statute — Benefit of Petitioner — Legislative Authorization — Negative. As applied to individual members of Industrial Commission, the statutory duty to inspect establishments where machinery is used may be for the benefit of the petitioner; nevertheless, the petitioner may not use the statute as a basis for recovery as express legislative authorization has not been given.

1. STATUTES — Intendments — Support — Constitutionality — Groupings — Undisturbed — Unless — Arbitrary. All reasonable intendments must be indulged to support the constitutionality of legislative acts, including classifications adopted by lawmakers; and their groupings will not be disturbed unless the classification is clearly arbitrary and without any reasonable basis. 2. CONSTITUTIONAL LAW — Equal Protection of the Law. Equal protection of the law is a guarantee of like treatment of all those who are similarly situated. 3. Legislation — Classification — Persons — Reasonable — Basis — Differences — Public Purpose. Any classification of persons singled out for legislation must be reasonable and not arbitrary and must be based on substantial differences having a reasonable relation to the persons dealt with and the public purpose to be achieved.<page_number>Page 148</page_number> 4. State — Classify — Reference — Evil to be Prevented — Proper. A state may classify with reference to the evil to be prevented; and if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out; and a lack of abstract symmetry does not matter. 5. WEAPONS — Classification — Prohibition — Reasonable — Concealed Pistol — — Previous Occasions — Burglary — Statute — Penalties — Class Legislation — Reasonable. The classification which prohibits defendant — who was discovered carrying a pistol concealed on his person and who on two previous occasions had been convicted of the crime of burglary — from carrying a concealed weapon is not unreasonable in its relationship to the evil sought to be cured; and statute providing felony penalties for carrying specified concealed weapons by those who have committed eleven specified crimes did not constitute unreasonable class legislation as applied to defendant. 6. Limit — Possession — Firearms — Unfitness — Scope — Legislature — Police Power — Statute — Constitutional. To limit the possession of firearms by those who, by their past conduct, have demonstrated an unfitness to be entrusted with such dangerous instrumentalities as a pistol, is clearly in the interest of the public health, safety, and welfare and within the scope of the legislature's police power; hence, the statute, C.R.S. 1963, 40-11-10, is not subject to the constitutional attack of unreasonableness and arbitrariness directed against it by defendant.

1. STATES — General Assembly — Authority — Creation — Legislative Districts — Limitations — Function of Court — Test — Bills — Reapportionment — Constitution. Although the Colorado constitution delegates to the General Assembly the power and authority to create legislative districts, subject only to state and federal constitutional limitations, nevertheless, it is the court's function to test the constitutionality of the senate and house bills — which reapportion the state legislative districts — by the applicable provisions of the constitution. 2. Compactness — Reapportionment. "Compactness" as used in the constitutional sense relating to reapportionment concerns a geographic area whose boundaries are as nearly equi-distant as possible from the geographic center of the area considered, allowing for variances caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines. 3. Bills — Reapportion — Districts — Compactness — Failure to Comply — Standard — Unconstitutional. In original proceeding challenging the constitutionality of Senate Bill No. 18 and House Bill No. 1048 — which reapportion the state legislative districts — Supreme Court concludes that the districts as established do not comply with the constitutional standard of compactness, but in several instances substantially depart therefrom; hence, since these bills fail to meet the constitutional mandate that each district shall be as compact in area as possible, they are therefore adjudged to be unconstitutional. 4. Selection of Delegates — Committeemen — Committeewomen — Procedures — — National Party Conventions — Proper. Although Senate Bill No. 18 and House Bill No. 1048 were in violation of the constitutional mandate that the senatorial and representative districts be as compact in area as possible, nevertheless, there could still be conducted thereunder the procedures involved in the selection of delegates to the 1972 national party conventions and in selection of national committeemen and committeewomen.<page_number>Page 177</page_number>

1. CRIMINAL PROCEDURE — Discovery — Trial — Prior to Set Date — Governing Rule. A criminal trial held prior to April 1, 1970 is governed by Colo. R. Crim. P. 16, insofar as discovery is concerned. 2. GRAND JURY — Testimony of Witnesses — Prior Criminal Trials — Rules — Not Included. With reference to criminal trials held prior to April 1, 1970, Colo. R. Crim. P. 16(d) set forth the parameters of a statement and grand jury testimony of witnesses was not included. 3. Trial — Prior to Decision — Right of Access — Testimony — Denial — Proper. Where trial of accused took place prior to Supreme Court's decision determining right of access to grand jury testimony, failure of trial judge to grant accused and his counsel the right to examine the grand jury testimony was not reversible error.

1. ASSAULT AND BATTERY — Vehicular — Statute — Driving or Control — Failure of Evidence — Reversal. Where defendant was convicted of vehicular assault as defined in 1965 Perm. Supp., C.R.S. 1963, 13-5-155 and now contends on review that the evidence failed to show that he was driving the vehicle or had it under his control at the time the victim was injured, held, defendant's contention has merit; and since reviewing court agrees that the evidence before the trial court fails to sustain the charge of vehicular assault, the judgment of the trial court must be reversed. 2. AUTOMOBILES — Vehicular Assault — Statute — Interdict — Operates or Drives — Control — Guilt — Negative. Where the statute pertaining to vehicular assault interdicts one who operates or drives a motor vehicle, and as those terms are defined one must be in actual "hands on the wheel"<page_number>Page 217</page_number> control of the vehicle in order to fall under the statute's interdiction, and where defendant here was not operating or driving the motor vehicle, held, under these circumstances, defendant could not be guilty of vehicular assault. 3. CRIMINAL LAW — Accessory — Conviction — Evidence — Principal — Guilty. To successfully convict a defendant of being an accessory, there must be sufficient evidence presented to show that there was, in fact, a principal who was guilty of the crime charged; and it is inconsequential whether or not the principal was ever charged with the criminal offense. 4. Vehicular Assault — Intent — Defendant — Back Seat — Accessory — Negative. Where it was apparent from the evidence that driver of vehicle could not be guilty of vehicular assault because there was noting to indicate that at time he drove vehicle forward he had the intent to injure anybody, and where intent to injure is one of the essential elements of the crime of vehicular assault, held, under these circumstances, defendant — who was in back seat and who had grabbed victim's wrist when vehicle was put in motion causing victim to be dragged approximately 120 feet — was not an accessory to the crime of vehicular assault.

1. COURTS — United States Supreme Court — Benton v. Maryland — Double Jeopardy — Applicable — States. Under the United States Supreme Court case of Benton v. Maryland, the double jeopardy clause of the Fifth Amendment was made applicable to the States. 2. JUDGMENT — Collateral Estoppel — Meaning. The phrase collateral estoppel means that when an issue of ultimate fact has once been determined by a final and valid judgment, that issue cannot again be litigated between the same parties in any future lawsuit. 3. Jefferson County District Court — Impairment of Mind — Offense — Denver — State of Mind — Not in Issue — Collateral Estoppel — Double Jeopardy — Bar — Negative. Where ultimate issue of fact determined by Jefferson County district court was that defendant, at time of commission of offense in Jefferson County, had suffered such an impairment of mind as to have destroyed his will power and rendered him incapable of choosing right and refraining from doing wrong, and although it was highly improbable that defendant was no suffering from some incapacity a few hours earlier when he allegedly committed an offense in Denver, and where defendant's state of mind at such time was not a matter distinctly put in issue or a question that was actually litigated in Jefferson County, held,<page_number>Page 235</page_number> under doctrine of collateral estoppel as embodied in double jeopardy clause of Fifth Amendment, determination of Jefferson County district court did not operate as a bar to subsequent prosecution of defendant in Denver district court. 4. Collateral Estoppel — Double Jeopardy Clause — Fifth Amendment — Motion to Dismiss — Denver District Court — Insanity — Jefferson County District Court. Although the doctrine of collateral estoppel, as embodied in the double jeopardy clause of the Fifth Amendment is not sufficient to support a motion to dismiss prosecution against defendant in the Denver district court when there has been a previous adjudication of insanity as to another offense in the Jefferson County district court, nevertheless, it does afford defendant the right in a subsequent sanity trial to claim finality with respect to the fact that he had become insane at the time of the commission of the crime in Jefferson County, hence, unless prosecution could show that defendant's mental state changed abruptly sometime after the offense was committed in Denver, defendant's sanity as to the Denver offense could not be proven. 5. JURY — Issue of Insanity — Sane — Issue of Guilt — Different — Guilty — Trial — Later Time. If the cause is set for trial to a jury on the issue of insanity only, and defendant is found sane, defendant must be tried on the issue of guilt at a later time to a different jury, and likewise, if the cause is set for trial to a jury on the issue of guilt only, and defendant is found guilty, defendant must be tried on the issue of insanity at a later time to a different jury. 6. MENTAL HEALTH — Sanity Trials — Statute — Presumption — Evidence to the Contrary. In all sanity trials which are conducted in accordance with 1965 Perm. Supp., C.R.S. 1963, 39-8-3, a presumption of sanity operates until<italic>some</italic> evidence to the contrary is presented. 7. CRIMINAL PROCEDURE — Sanity Trial — Defendant — Requirement — Some Evidence of Insanity — Proper — Presumption of Sanity — Convenience. The requirement that the defendant in a sanity trial present only <italic>some</italic> evidence of insanity to rebut the presumption of sanity is wholly proper, since a presumption is not evidence, and the primary purpose of the presumption of sanity is merely procedural convenience in those trials in which sanity is not really an issue.<page_number>Page 236</page_number> 8. Presumption of Sanity — Rebutted — Directed Verdict — Prosecution — Failure of Evidence. Once the presumption of sanity has been rebutted, a directed verdict should be granted to the defendant if the prosecution fails to put on any evidence of defendant's sanity. 9. Presumption of Sanity — Rebutted — Prosecution — Proof — Sane — Beyond Reasonable Doubt. For the prosecution to prevail after the presumption of sanity has been rebutted, it must prove that the defendant was sane beyond a reasonable doubt.

1. CRIMINAL EVIDENCE — Proof — Suspicion — Surmise — Conjecture — Conviction — Negative. Proof that stands no higher than the level of suspicion, surmise or conjecture has no substance and cannot form the basis of a conviction under our system of criminal justice, which requires proof of guilt beyond a reasonable doubt. 2. COURTS — Miranda v. Arizona — Protections — Police — Interrogation — Custody. The protections set forth in Miranda v. Arizona must be afforded when the person suspected of criminal conduct is subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any subsequent way. 3. Miranda v. Arizona — Waiver — Rights — Presumed — Silence of Accused — Negative. A valid waiver of Miranda rights will not be presumed simply from the silence of the accused after warnings have been given. 4. Miranda v. Arizona — Waiver — Burden — People — Attendant Circumstances. The burden is upon the People to show attendant circumstances sufficient from which a knowing and intelligent waiver of Miranda rights may be implied. 5. CRIMINAL LAW — Waiver — Accused — Rights — Clear and Convincing — Relinquishment — Voluntary. Strong and unmistakable circumstances may upon occasion establish an effective equivalent to an express waiver; but to constitute such a waiver, the attendant facts must show clearly and convincingly that the accused did relinquish his constitutional rights knowingly, intelligently and voluntarily.<page_number>Page 260</page_number> 6. Waiver — Miranda Rights — Negative — Incriminating Statement — Inadmissible. Where defendant had been arrested, handcuffed and placed in police vehicle before he made incriminating statement, and where defendant was not asked by police if he desired an attorney and was not given an opportunity to obtain one, held, under the circumstances, incriminating statement of defendant was inadmissible where record did not show any strong and unmistakable circumstances from which it could fairly be said that defendant knowingly, intelligently and voluntarily waived his Miranda rights.

1. ANNEXATION — Right of Review — Limitation — Landowners — Electors — Commissioners. The statute — 1965 Perm. Supp., C.R.S. 1963, 139-21-15(1) — expressly limits the right of review, pertaining to territory proposed to be annexed, to landowners, resident electors and the county commissioners. 2. Statutory. Annexation is strictly statutory. 3. MUNICIPAL CORPORATIONS — Annexation — Review — Limitation — Lack of Standing — Statute. In view of the fact that, under 1965 Perm. Supp., C.R.S. 1963, 139-21-15(1)(a), acts of the city council of the annexing municipality may be reviewed only by landowners, resident electors, and county commissioners who believe themselves to be aggrieved, nearby municipality, which had filed an earlier petition to annex some of the same territory, had no standing to challenge court order providing for an election to be held in disputed area with regard to annexation petition filed by different municipality. 4. ANNEXATION — Appellate Review — Certiorari. Appellate review pertaining to annexation is limited to certiorari.<page_number>Page 335</page_number>

1. INJUNCTION — Violation — Ordinances — Wrecking Yards — Junk Yards — City — Enjoin — Violation. City's remedy against property owners in violation of ordinances regulating automobile wrecking yards and junk yards was not limited to issuing a citation or filing a complaint in municipal court; rather, city could seek an injunction to enjoin such owners from violating the ordinances. 2. ZONING — Uses — Enjoined. Uses of property not in compliance with zoning may be enjoined. 3. NUISANCE — Uses — Permitted — Zoning — Enjoined. Even when uses of property are permitted by zoning regulations, they may be enjoined if they constitute a nuisance.

1. WATER RIGHTS — State Water Judges — Jurisdiction — Adjudicate — Priority — Small Wells — Statute. Under 1969 Perm. Supp., C.R.S. 1963, 148-21-45, state water judges had jurisdiction to adjudicate the priority of small water wells prior to the statute's amendment in 1972; the statute does not permit such adjudication.<page_number>Page 377</page_number> 2. Small Well Owners — Adjudication — Priority — Applications — Prior to Amendment — Court Action. Petitioners, as small well owners, who sought to have the priority of their wells adjudicated and whose applications were filed prior to the 1972 amendment, are entitled to court action under these applications; especially, since hundreds of owners of small wells have already obtained adjudications thereof prior to such amendment. 3. Legislative Intent — Section — Adjudication — Small Wells — Permissive. Supreme Court is of the view that the legislative intent of Section 45 was to make the adjudication of small wells permissive and not to prohibit such adjudication. 4. STATUTES — Interpretation — Contemporaneous — Construction — Public Officials. In interpreting a statute one should look to the contemporaneous construction of the Act by public officials charged with its administration. 5. Well Priorities — Ambiguity — Title and Text — Legislative Intent — Title Controlling. In light of the ambiguity in the title and text of the statute pertaining to the adjudication of well priorities, and in light of the express legislative intent that underground water be fully integrated with other surface waters, reviewing court concludes that the title to the section should be and is controlling thereby entitling owners of small wells to adjudication under the statute. 6. Legislative Intent — Change — Meaning — General Revision — Inferred. A legislative intent to change the meaning of statutes in the course of a general revision will not be inferred unless the intent is clearly and indubitably manifested.

1. KIDNAPPING — Following Victim's Car — Ramming — Pursuing — Blocking — Going to Victim's Car — Driving — Facts — Establish — Crime. In prosecution for kidnapping, where record reveals the following facts: The driver-accomplice, at defendant's insistence, followed victim's car and attempted to force it off the road; that after ramming victim's car and then pursuing it to outskirts of town, driver of following vehicle blocked off victim's vehicle on a side road, that defendant then went over to victim's car, shoved her to passenger side, jumped in behind wheel and proceeded to drive victim's car until victim broke from defendant's grasp and jumped from moving car into ditch, held, these facts, as such, clearly establish the crime of kidnapping as defined by statute. 2. Assumption — Accused — Instruction — Lesser Included Offense — False Imprisonment — Negative. There is no merit to the assumption that an<page_number>Page 420</page_number> accused who is charged with kidnapping is entitled to an instruction on the lesser included offense of false imprisonment. 3. INSTRUCTIONS, CRIMINAL — Verdict Form — Lesser Included — Offense — Guilt — Greater Offense — Nothing. Defendant is entitled to an instruction and verdict form on a lesser included offense unless it is clear from the evidence that the defendant is guilty of the greater offense or nothing at all. 4. KIDNAPPING — Acts — Statute — Alibi — False Imprisonment — Guilt — Nothing at All — Refusal — Instruction — Proper. Where both the victim and defendant's accomplice testified that defendant committed acts which constitute kidnapping as defined by C.R.S. 1963, 40-2-44(1), the only theory of defense was alibi, and defendant denied commission of any act which could lead to conviction of either false imprisonment or kidnapping, also, no evidence was presented from which the jury might have found that defendant was only guilty of false imprisonment, held, under these circumstances, defendant was either guilty of kidnapping or nothing at all; hence, trial court's refusal to instruct jury on false imprisonment was wholly proper. 5. CRIMINAL LAW — Errors — Failure to Raise — Trial — Motion for New Trial — Consideration — Review — Negative. Where errors alleged with regard to the admission of identification testimony were not raised during the trial or in defendant's motion for a new trial, under such circumstances, they need not be considered by reviewing court on writ of error. 6. KIDNAPPING — Plain Error — Negative — Competent Counsel — Line-up — Safeguard of Rights. In prosecution for kidnapping, record does not reflect errors of such a significant nature that they could be denominated "plain error"; especially, where defendant was represented by competent counsel at line-up and there is no evidence in record that counsel failed to safeguard the rights of defendant or that counsel was ineffective in eliminating hazards which make line-up critical stage of proceedings. 7. CRIMINAL LAW — Change in Counsel — Prior to Trial — Deprivation — Adequate Counsel — Negative. In prosecution for kidnapping, record does not reflect, as defendant contends, that the change in defense counsel which occurred prior to trial deprived defendant of adequate representation.<page_number>Page 421</page_number>