Volume 180 — Colorado Reports

1. INSTRUCTIONS, CRIMINAL — Simple Robbery — Request — Evidence — charge — Aggravated Robbery. In a prosecution where aggravated robbery has been charged, the trial judge must give an instruction on simple robbery when such instruction is requested by defendant and when it is supported by the evidence. 2. ROBBERY — Aggravated — Failure to Give — Simple Robbery Instruction — Proper. In prosecution for aggravated robbery, where none of the evidence presented showed anything less than aggravated robbery, and no effort was made by defendant to dispute any of the evidence of aggravated robbery, but attempted rather to show alibi, held, under the circumstances, trial court did not err in failing to give jury a simple robbery instruction. 3. CRIMINAL LAW — Waiver of Rights — Surrounding Circumstances — Express Declination — Negative. A knowing, intelligent and voluntary waiver of rights on the part of the accused may be implied from surrounding circumstances where there is no express declination. 4. Waiver — Miranda Warnings — Evidence — Intelligent — Voluntary. Where police officers twice gave defendant complete Miranda warnings after his arrest and on both such occasions defendant stated that he understood his rights yet failed to exercise them, and where his confession immediately followed the second warning, held, under the circumstances, finding of trial court — that the evidence was sufficient to show a knowing, intelligent, and voluntary waiver — was correct. 5. CRIMINAL PROCEDURE — Accused — County Judge — Without Delay — Informed of Rights — Before — Statement to Police — Rules. The purpose of Crim. P. 5 which requires that defendant be taken before a county judge without<page_number>Page 17</page_number> unnecessary delay is to insure that the accused is fully informed and completely understands all of his constitutional rights before he makes any statement to police. 6. Rights — Informed — Police — County Judge — Different Matter — Robbery — Liquor Store — Rule — Lack of Compliance — Negative. Where record clearly reflects that defendant was fully informed of his constitutional rights by police officers and stated that he understood such rights, and where defendant was in fact taken before county judge and fully informed of his constitutional rights, although in connection with different matter than alleged robbery of liquor store for which he was charged, held, under the circumstances, any lack of compliance with rule requiring that he be taken before county judge without unnecessary delay was not reversible error.

1. CRIMINAL LAW — Findings of Fact — Undisturbed — Appeal — Support — Evidence. Findings of fact are not ordinarily disturbed on appeal if they are supported by competent evidence. 2. Inducement — Improper — Lie Detector Test — Inculpatory Remarks — Suppression — Proper. Record and findings of trial court fully support suppression of statement made to interrogating officers following defendant's arrest on ground that defendant was improperly induced to take lie detector test — during which he made inculpatory remarks — by reason of statement of officer that if defendant took the test he might be released.<page_number>Page 57</page_number>

1. REFERENCE — Master — Exception — Rule. Under C.R.C.P. 53(b), a reference to a master should be the exception and not the rule. 2. Actions Without Jury — Exceptional Condition — Showing — Rule. In actions to be tried without a jury, under C.R.C.P. 53(b), a reference should be made only upon a showing that some exceptional condition requires it. 3. MANDAMUS — Writ — Vacate — Reference Order — Protection — Court — Excess of Power. The issuance of a writ to mandate the vacation of a reference order is necessary to protect the rights of the petitioner where the court is proceeding in excess of its power. 4. REFERENCE — Master — Permanent Orders — Appointment — Delegation — Judge — Abdication — Responsibilities — Constitution. Where trial court appointed a master in a pending divorce proceeding involving controverted matters and issues pertaining to permanent orders — with particular reference to an examination and evaluation of properties and assets of the parties, including but not limited to stocks, bonds, and other securities and investments, as well as interpretation and evaluation of income tax reports and other complicated financial transactions — in effect delegating<page_number>Page 96</page_number> the decision making, as well as the fact finding, function to the master, held, in so doing, the judge abdicated his constitutional responsibilities and duties. 5. Litigants — Burdened — Costs — Violation — Speedy Trial. Litigants should not be burdened with the costs of referring matters which the judge might easily hear and determine for himself; especially, since prohibitive costs and time-consuming delay can be as violative of litigant's right to a speedy trial as no trial at all. 6. All Issues — Reduce — District Court — Reviewing Court. References of all the issues presented reduce the function of the district judge to that of a reviewing court and may be sanctioned, if at all, only under the most compelling circumstance. 7. Master — Accounting — Necessary — Simple — Submission — Unjustified. With reference to the appointment of a master, reviewing court does not hold that the mere fact that accounting may be necessary is sufficient in itself to justify a reference if it appears that the matter is simple and would not consume an undue amount of the court's time. 8. Accounting — Complex — License — All Issues — Negative. Even where an accounting possesses the requisite complexity and difficulty there is no license in the rule to refer all the issues presented in a case to a master. 9. DIVORCE — Reference — Special Master — Accounting — Necessary — Property — Substantial. Trial court should refer a divorce proceeding to a special master only where an accounting is necessary and property involved is of substantial proportions.

1. ATTORNEYS AT LAW — Failure to Prepare Will — Eight Months — Gross Negligence — Censure — Suspension — Disbarment. Attorney respondent — who failed to prepare a will for at least eight months after he was employed to<page_number>Page 134</page_number> do so, especially where the person so employing him was an aged woman — was grossly negligent and showed a total lack of responsibility; and since respondent had been censured on two other occasions and had also been suspended from practice of law for one year as a result of other derelictions of duty, held, under these circumstances, disbarment deemed proper action in instant proceeding.

1. DRIVING UNDER INFLUENCE — Driving While Ability Impaired — Lesser Included Offenses — Causing Injury — Negative. The offenses of driving under the influence of intoxicating liquor and driving while ability is impaired are not lesser included offenses of the charge of causing an injury while driving under the influence of intoxicating liquor. 2. INSTRUCTIONS, CRIMINAL — Vehicular Assault — Issue — Sufficiency of Evidence — Moot. Trial court did not err by instructing jury on charge of vehicular assault since issue of sufficiency of evidence to submit question of such charge to jury became moot upon verdict of not guilty of that charge. 3. DRIVING UNDER INFLUENCE — Vehicular assault — Issues — Conviction — Causing Injury. Where defendant was convicted of causing an injury while driving under the influence of intoxicating liquor, submission of the issues under the count of vehicular assault — a charge under which defendant was found to be not guilty — was not reversible error. 4. INSTRUCTIONS, CRIMINAL — Driving Under Influence — Causing Injury — Second Paragraph — Judicial Comment — Negative. In prosecution for causing injury while driving under influence of intoxicating liquor, second paragraph of instruction — "The fact, if it be a fact, that at the moment of collision the defendant was facing a steady red light signal alone and had not stopped before entering the intersection, may be considered by you in determining whether or not the defendant was at that time driving in a reckless, careless or negligent manner." — was actually not a judicial comment on the evidence, although the paragraph could have been more appropriately phrased. 5. DRIVING UNDER INFLUENCE — Injury — Essential Element — Reckless — Careless — Wanton — Negligent. An essential element of the offense of causing an injury while driving under the influence of intoxicating liquor is that the accused drove in a reckless, careless or negligent manner, or with a wanton or reckless disregard of human life or safety; thus, one may be found guilty of causing an injury while driving under the influence of intoxicating liquor — assuming proof of the other elements — if he drove in a negligent manner. 6. INSTRUCTIONS, CRIMINAL — Driving Under Influence — Injury — Criminal<page_number>Page 301</page_number> Negligence — Improper — Others — Closely Tied — Adequate. With reference to instruction given in prosecution for causing injury while driving under influence of intoxicating liquor and which defined criminal negligence, although use of term "criminal negligence" was not proper, nevertheless, instruction properly defined simple negligence; moreover, the instruction was closely tied to other instructions relating to offense of causing injury while driving under influence of intoxicating liquor (to which it properly referred), and when read as a whole adequately informed jury on the law.

1. DRUGS AND DRUGGISTS — Less Than Gram — Marijuana — Pocket — Borrowed Jacket — Evidence — Insufficient. Where defendant who was found in possession of plastic bags containing less than a gram of marijuana and who asserted that he had found these bags in one of the pockets of a jacket which he had borrowed from a friend, held, under these circumstances, the evidence was insufficient to sustain defendant's conviction of unlawful possession of marijuana. 2. Possession of Marijuana — Evidence — Knowledge — Conviction. There must be presented some evidence which either directly or indirectly shows that the person charged with possession of marijuana did, in fact, have knowledge that he was in possession of marijuana before a conviction may be upheld. 3. Possession — Usable Quantity — Knowledge — Inferred. In prosecution for unlawful possession of marijuana, if possession of a usable quantity of marijuana is established, knowledge of the presence and nature of the substance may be inferred. 4. Quantity — Trace — Knowledgeable Possession — Negative. Where the quantity of marijuana involved is so minute that it amounts to only a trace, there is no basis, from that fact alone, for any logical or reasonable inference that the defendant had knowledgeable possession.

1. MENTAL HEALTH — Examination — Specialists — Good Cause — Further Psychiatric Examination. Under the provisions of C.R.S. 1963, <cross_reference>39-8-106</cross_reference> (Laws 1972, p. 226), once a defendant has been examined by specialists in the field of nervous and mental diseases, the court may require good cause to be shown before ordering further psychiatric examination. 2. Conviction — Drug — Psychiatrist — Own Choosing — Denial — Proper — Statute. Where defendant, who had been convicted of unlawful possession of a dangerous drug thereafter asserted that he was incompetent to proceed and that he had an absolute right to the appointment of a psychiatrist of his own choosing, held, defendant's assertions are without merit; and trial court, in denying defendant's motion for the appointment of an additional psychiatrist of his own choosing — absent a showing of good cause — properly construed the applicable sections of the statute. 3. STATUTES — Construed as a Whole. A statute should be construed as a whole so as to give "consistent, harmonious, and sensible effect to all its parts." 4. CRIMINAL LAW — Indigency — Right — State — Payment — Experts — Statute. Under C.R.S. 1963, 39-8-119 (Laws 1972, p. 232) an indigent defendant is<page_number>Page 360</page_number> given the right to have the state pay for those experts to which he is entitled under law, but not to have the state pay for a particular expert which he might select or desire. 5. Additional Experts — Determination — Good Cause — Trial Court — Statute. Purpose behind C.R.S. 1963, 39-8-106 (Laws 1972, p. 226) was to cause the trial court, in the exercise of judicial discretion, to determine whether good cause has been shown or exists for the appointment of additional experts. 6. WITNESSES — Medical Expert — Court Appointed — Court's Witness. A court-appointed medical expert who expresses his professional opinion in a trial is not a partisan, but is, in effect, the court's witness. 7. CRIMINAL LAW — Counsel — Right — Indigent Defendant — Privilege — Selection — Particular Lawyer — Negative. The right of an indigent defendant to have court-appointed counsel does not include the privilege to select a particular lawyer. 8. CONSTITUTIONAL LAW — Psychiatrist of Own Choosing — Refusal to Appoint — — Due Process — Denial — Negative. Where trial court had appointed two independent psychiatrists who examined indigent defendant and determined his competency, refusal of court to appoint psychiatrist chosen by such defendant — who had been convicted of unlawful possession of a dangerous drug and who thereafter asserted that he was incompetent to proceed — did not deny defendant due process, equal protection, or fundamental fairness on theory of invidious discrimination because rich defendant could have had a psychiatrist of his own choosing.

1. CONSTITUTIONAL LAW — Double Jeopardy — Second Trial — Barred. Where, in first trial — after reprimanding and warning defense counsel for conduct which occurred during cross-examination of alleged victim — judge declared a mistrial sua sponte during the course of defense attorney's closing argument, against the urging of the district attorney, held, under the circumstances, second trial was barred by constitutional prohibition against double jeopardy. 2. "Jeopardy." Generally, a person is in "jeopardy" when he has been brought to trial on a valid indictment or information in a court of competent jurisdiction, has been arraigned and has pleaded, and a jury has been impaneled and sworn to try the cause. 3. CRIMINAL LAW — Mistrial — Doctrine of "Manifest Necessity." The United States Supreme Court doctrine of "manifest necessity" which has been adopted by the Colorado Supreme Court stands as a command to trial judges not to foreclose the defendant's option to go to the jury and complete his trial unless a scrupulous exercise of sound judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. 4. Mistrial — Unwarranted — Minor Misconduct — Defense Counsel. Minor misconduct of defense counsel, such as over-stepping the limit set by the court for the examination of a witness, does not under the authorities warrant a mistrial thereby depriving the defendant of his right to secure a verdict from the jury that had been sworn to try him.