Volume 181 — Colorado Reports

1. <bold>WITNESSES</bold> — <italic>Grand Jury — Wiretap — Challenge — Contempt</italic>. A motion to suppress is not available to a grand jury witness who challenges the<page_number>Page 11</page_number> constitutionality of an investigative wiretap until after he is cited for contempt. 2. <bold>GRAND JURY</bold> — <italic>Protection — Unwarranted Charges — Motion to Suppress —</italic><italic>Determination — Frustrate — Contempt — Court — Examination — Requirement</italic>. A grand jury has long been a means for ferreting out crime and for providing the innocent with protection against unwarranted charges; hence, to permit every witness who appears before a grand jury to file a motion to suppress and have it determined before he testifies would be to frustrate the grand jury process; moreover, adequate protection is afforded the witness by the requirement that the court examine all the facts before imposing a contempt sanction. 3. <bold>DISCOVERY</bold> — <italic>Documents — Wiretap Order — Request — Contest Legality —</italic><italic>Premature — Grand Jury Witnesses — Contempt</italic>. Where grand jury witnesses, who refused to answer questions based on information obtained by means of alleged illegal wiretap, and who, in order to contest legality of such wiretap made request for discovery of documents supporting wiretap order, held, request for discovery of documents supporting wiretap order was premature and was not required to be afforded prior to time witnesses were cited for contempt.

1. <bold>APPEAL AND ERROR</bold> — <italic>Facts — Conflicting Testimony — Findings — Supreme</italic><italic>Court — Adopted</italic>. Findings of the trial court based on conflicting testimony will be adopted by the Supreme Court in its statement of the facts. 2. <bold>VENDOR AND PURCHASER</bold> — <italic>Contracts — Sale of Land — Modification —</italic><italic>Parol — — Negative — Exceptions</italic>. Two exceptions to the general rule that contracts for the sale of land cannot be modified by subsequent parol agreement are: (1) When the subsequent oral agreement amounts to a revocation of the written contract; and (2) When a party consents to or requests a postponement of performance by the other party which is for his benefit and the other party has acted on such request or consent. 3. <bold>STATUTE OF FRAUDS</bold> — <italic>Extension — Oral — Estoppel — Other — Refrain —</italic><italic>Performance — Reliance</italic>. Where a party secures an oral agreement to extend the time for performance of a contract required by the statute of frauds to<page_number>Page 16</page_number> be in writing, he will be estopped to claim the benefit of the statute where the other party refrained from performing duties within the time specified in the written contract in reliance on the oral agreement to extend. 4. <italic>Specific Performance — Oral Extension Agreement — Assumption</italic><italic>Statement — Vendor's Failure — Enforceable</italic>. In action by purchaser against vendor for specific performance of a written contract to sell real estate, where purchaser's consent to oral agreement to extend time for performance of contract was necessitated by vendor's failure to perform its obligation of providing a sufficient assumption statement, and purchaser's nonperformance of actual tender within time specified in last written extension was therefore not caused by his own inability or unwillingness to perform, but rather by reason of extension agreement entered into due to vendor's failure to provide a sufficient assumption statement, <italic>held</italic>, under these circumstances, the oral extension agreement was enforceable despite the statute of frauds (C.R.S. 1963, 59-1-8), and decree of specific performance was proper.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Surrebuttal — New Matter — Proper — Discretion.</italic> Generally, defendants should always be permitted to introduce as surrebuttal evidence which tends to meet <italic>new</italic> matter introduced by the prosecution on rebuttal; otherwise, it is within the discretion of the trial court to allow or deny surrebuttal. 2. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Surrebuttal — Reply — New — Negative — Denial —</italic><italic>Proper.</italic> In prosecution for unlawful possession of heroin, where defendant sought to discuss on surrebuttal matters that were not a reply to <italic>new</italic> evidence of the prosecution and had been specifically covered in earlier testimony, <italic>held</italic>, under these circumstances, trial court did not commit an abuse of discretion in denying defendant's request.

1. <bold>ZONING</bold> — <italic>Special Use Permit — Sand and Gravel — Use of Right —</italic><italic>Requirements Met — Denial — Arbitrary.</italic> Where construction company purchased land to provide source for enormous amounts of sand and gravel<page_number>Page 78</page_number> which it utilized in its various construction activities and sand and gravel are a use of right in zone in which property is located except that special use permit is required in areas subject to flooding, and where company made application to Planning Commission which agreed to all staff recommendations and reported that company had met all requirements and would therefore be entitled to utilize the property as proposed, and where contrary to the study, planning board voted to recommend denial, and hearing before County Commissioners also resulted in a denial, and district court affirmed declaring county zoning resolution to be constitutional,<italic>held</italic>, under the circumstances, denial of special permit was arbitrary, capricious and not based on competent evidence. 2. <italic>Safeguards — Denial — Lawful Use — Negative — Board — Authority —</italic><italic>Conditions — Protection.</italic> Reviewing court does not interpret county zoning resolution permitting board of county commissioners to impose conditions and safeguards for special use as intended to serve as grounds for denial of lawful use; rather, it was intended to give board authority to tailor proposed use to conditions of district so as to protect health, safety and welfare. 3. <bold>ADMINISTRATIVE LAW AND PROCEDURE</bold> — <italic>Decisions — Support — Evidence.</italic> Decisions of administrative bodies must be supported by competent evidence. 4. <bold>ZONING</bold> — <italic>Right — Change of Circumstances — Use — Incompatible — Prior</italic><italic>Usage — Amendment — Proper.</italic> When a matter is permitted by right in the zone created and either through an environmental concern or a change of circumstances the use is incompatible with prior usage, the proper procedure is to amend the zoning resolution. 5. <bold>COURTS</bold> — <italic>Boards — Unrestricted Exercise of Authority — Arbitrary —</italic><italic>Prohibition.</italic> Courts are not to be impotent, stand idly by, and allow unrestricted exercise of authority by boards, not granted by statute, or permit the arbitrary and unjustified exercise of discretion.

1. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Motion — Expiration — Consideration —</italic><italic>Excusable Neglect — Rules.</italic> C.R.C.P. 6(b)(2) allows consideration of a motion made after the expiration of a specified period where the failure to act was a result of excusable neglect. 2. <bold>PARTIES</bold> — <italic>Burden — Plaintiff — Failure — Motion for Substitution —</italic><italic>Excusable Neglect — Rules.</italic> The burden is on the plaintiff to show that the failure to file a motion for substitution of parties within the 90 days prescribed by C.R.C.P. 25(a)(1) was due to excusable neglect. 3. <bold>WORDS AND PHRASES</bold> — <italic>Excusable Neglect.</italic> Excusable neglect involves a situation where the failure to act results from circumstances which would cause a reasonably careful person to neglect a duty. 4. <italic>Excusable Neglect Situations.</italic> Generally, most situations of excusable neglect involve unforeseen occurrences such as personal tragedy, illness, family death, destruction of files, and other similar situations which would cause a reasonably prudent person to overlook a required deadline date in the performance of some responsibility.<page_number>Page 86</page_number> 5. <italic>Excusable Neglect — Negative — Failure to Act — Carelessness —</italic><italic>Negligence.</italic> Failure to act due to carelessness and negligence is not excusable neglect. 6. <italic>Excusable Neglect — Occurrence.</italic> Excusable neglect occurs where there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as a result of some unavoidable hindrance or accident. 7. <bold>ATTORNEY AND CLIENT</bold> — <italic>Notification — Court — Parties — Death.</italic> An attorney for a deceased defendant has a duty to notify the court and the other parties in the action that his client had died. 8. <bold>PARTIES</bold> — <italic>Notification — Death — Defendant — Plaintiff's Attorney —</italic><italic>Inquiry — Substitution — Rules.</italic> A plaintiff's attorney who receives notification of defendant's death has the responsibility to promptly initiate the necessary inquiries to determine the identity of a person to be substituted for the deceased defendant, and to file a motion for substitution of parties in accordance with the Rules of Civil Procedure. 9. <italic>Substitution — Failure to File Motion — Notification — Death —</italic><italic>Excusable Neglect — Negative.</italic> Where plaintiff's attorney failed to file motion to substitute deceased defendant's administratrix as party defendant in tort action within 90 days after receiving notification of defendant's death because notification had been placed in attorney's file and "thereafter overlooked," <italic>held</italic>, under the circumstances, such failure was not the result of "excusable neglect" within the meaning of the statute allowing consideration of a motion after expiration of specified period where failure to act was due to excusable neglect.

1. <bold>ATTORNEY AND CLIENT</bold> — <italic>Conduct of Action — Implication — Prosecute to</italic><italic>Conclusion — Abandon — Negative.</italic> Generally, an attorney who undertakes to conduct an action impliedly stipulates that he will prosecute it to a conclusion; and he is not at liberty to abandon the suit without cause. 2. <bold>CRIMINAL LAW</bold> — <italic>Counsel — Indigent Defendant — Dismissal — Permission.</italic> An indigent defendant cannot dismiss appointed counsel without permission of the court. 3. <italic>Counsel — Indigent Defendant — Withdraw — Permission.</italic> Counsel for an indigent defendant cannot withdraw without permission. 4. <italic>Counsel — Withdrawal — Discretion of Court.</italic> Motions for withdrawal of counsel are addressed to the discretion of the court and will not be reversed unless clear error or abuse is shown. 5. <bold>ATTORNEY AND CLIENT</bold> — <italic>Leave to Withdraw — Discretion of Court —</italic><italic>Burden — — Movant — Legitimacy of Request.</italic> A motion by an attorney for leave to withdraw for any reason is addressed to the sound discretion of the court and, as it may or may not be meritorious, the burden rests with the moving party to prove to the court's satisfaction the legitimacy of the request, and if movant either fails or refuses to do so, the court may properly deny the motion. 6. <italic>Advocate — Testimony — Adverse — Prohibition.</italic> A lawyer cannot act as an advocate on behalf of his client, and yet give testimony adverse to the interests of that client in the same proceeding. 7. <bold>CRIMINAL LAW</bold> — <italic>Counsel — Public Defender — Deputy — Inadequate —</italic><italic>Inconsistent Position — Withdrawal.</italic> Where defendant's motion for leave to change his pleas of guilty to not guilty was grounded to the allegation that his guilty plea was induced by inadequate representation of counsel,<page_number>Page 92</page_number> and if public defender and his deputy were to continue to represent defendant they would be in the inconsistent position of attempting to defend their own conduct while representing a client who was contending that he was not properly advised as to his plea, <italic>held</italic>, under these circumstances, the public defender and his deputy would be permitted to withdraw as defendant's counsel.

1. <bold>APPEAL AND ERROR</bold> — <italic>Acceptance of Award — Judgment — Waiver — Review.</italic> Generally, a party who accepts an award or legal advantage under a judgment normally waives his right to any review of the adjudication which may again put in issue his right to the benefit which he has accepted. 2. <italic>Decision Not to Appeal — Modification — Incontrovertible Concession</italic><italic>of Liability — Negative.</italic> Many factors contribute to a decision as to whether an appeal should be taken, and a decision not to appeal or ask for a modification of judgment does not necessarily infer an incontrovertible concession of liability. 3. <italic>Right to Appeal — Mutual Intent — Negative.</italic> In action by petitioner elevator company against respondent bank claiming that bank, as pledgee of certain security, failed to account to petitioner, record fails to reveal that it was the <italic>mutual</italic> intent of the parties that petitioner's right to appeal should be preserved despite execution of stipulation for satisfaction of judgment; or that petitioner could both enforce the judgment of the lower court and also prosecute an appeal.<page_number>Page 232</page_number> 4. <italic>Satisfaction of Judgment — Stipulation — Attorney's Fees — Acceptance</italic><italic>— Moot.</italic> In action by petitioner elevator company against respondent bank claiming that bank, as pledgee of certain security, failed to account to company for certain funds, where court approved the stipulation of the parties for satisfaction of judgment by a set-off and payment of attorney's fees and judgment was so satisfied, <italic>held</italic>, under the circumstances, act of petitioner in accepting the attorney's fees as part of the satisfaction of judgment served to moot his appeal, since the acceptance of the fees was clearly a legal advantage taken pursuant to the judgment.

1. <bold>JUDGMENT</bold> — <italic>Summary — Class Action — Challenge — Validity — Revenue</italic><page_number>Page 254</page_number><italic>Bonds — Disposition — Rule.</italic> In class action challenging the validity of revenue bonds, where defendants attached to their motion to dismiss for failure to state a claim certified copies of resolutions of county and city creating airport authority referred to in one of plaintiffs' claims and bond resolutions and certain covenants and agreements the alleged invalidity of which formed the basis for another claim for relief, and where trial court assumedly took those matters into consideration in sustaining defendants' motion, <italic>held</italic>, under the circumstances, the motion to dismiss had to be treated as a motion for summary judgment and disposed of as provided in Rule 56. 2. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Public Airport Authority — Compliance —</italic><italic>Counsel — Charter — Uphold — Emergency Clause — Proper.</italic> Where there was strict compliance by city council with terms of its charter with regard to passage of ordinance creating a public airport authority, <italic>held</italic>, the upholding of the validity of the emergency clause in the ordinance — "No ordinance shall be passed finally on the date it is introduced, except in cases of emergency, for the preservation of the public peace, health or safety, and then only by the unanimous vote of all members of the Council" — — on the theory that legislative determination that emergency existed was conclusive, was not error. 3. <bold>AVIATION</bold> — <italic>Public Airport Authority Act — Vesting — Rights and</italic><italic>Obligations — Without Approval — Due Process.</italic> Provision in Public Airport Authority Act — which provides for vesting in airport authority of all rights, contracts, obligations and property, both real and personal, belonging to municipality or county and used for or in relation to transportation by air without approval of tax paying electors in the respective political entities — was not invalid as authorizing the taking of property without due process of law. 4. <bold>COUNTIES</bold> — <italic>Municipalities — Instruments of State.</italic> Municipalities and counties exist for the convenient administration of government and are merely instruments of the state, created to carry out the will of the state. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Municipal Corporation — Privileges and</italic><italic>Immunities — — Negative.</italic> A municipal corporation, whether statutory or created under the constitution, has no privileges or immunities under the state constitution, and residents and tax paying electors thereof derive no such rights enforceable in behalf of the county and the city.<page_number>Page 255</page_number> 6. <bold>AVIATION</bold> — <italic>Public Airport Authority Act — Assertion — Vague — Lack of</italic><italic>Merit.</italic> Assertion — that the Public Airport Authority Act is vague, indefinite and uncertain — is without merit. 7. <bold>STATUTES</bold> — <italic>Unconstitutional — Invalidity — Beyond Reasonable Doubt.</italic> A legislative act will not be declared unconstitutional unless its invalidity is established beyond a reasonable doubt. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>Airport Authority — Statute — Authorize —</italic><italic>Governor — Join — Creation — Revenue Bonds — Class Action — Representation</italic><italic>— Board.</italic> Constitutionality of statute allowing general assembly to authorize governor to join in creation of airport authority and pertaining to state's entitlement to representation on airport board of commissioners was not relevant to class action challenging validity of revenue bonds issued by authority; especially, where resolution creating airport authority showed that general assembly did not, by law, authorize the governor to join, on behalf of the state, in creation of the airport authority. 9. <bold>AVIATION</bold> — <italic>Resolutions — Contribution — County and City — Efficient</italic><italic>Operation — Facilities — Validity — Bonds — Unaffected.</italic> Companion resolutions adopted by board of county commissioners and city council at instigation of fiscal agent for public airport authority — which relate to contribution of funds by county and city to extent necessary for efficient and economical operation of airport facilities — do not affect validity of airport authority bonds; hence, question of whether companion resolutions create obligations which could be authorized only by a vote of the respective electorates would not be reached at this juncture.

1. DRUGS AND DRUGGISTS — Balloon — Heroin — Identification — Admissibility — Proper. In prosecution for possession of a narcotic drug, where evidence revealed that two police officers observed defendant drop balloon on sidewalk as officers approached him, which balloon contained twenty capsules and which a police chemist, after examining the contents of several of the capsules, found them to contain heroin, <italic>held</italic>, under the circumstances, balloon, capsules, their evidence envelope and its seal were properly and sufficiently identified and were therefore properly allowed in evidence; furthermore, chain of evidence was properly preserved and balloon and its contents were adequately accounted for from time balloon was dropped on sidewalk by defendant. 2. Six of Twenty Capsules — Heroin — Introduction — Twenty — Proper. Where the chemical analysis of approximately six of the twenty capsules, selected at random, showed the presence of a usable amount of heroin the<page_number>Page 306</page_number> introduction of all twenty capsules was not reversible error; especially, since the presence of heroin in six of the capsules was by itself sufficient to sustain the conviction of possession of a narcotic drug. 3. INSTRUCTIONS, CRIMINAL — Heroin — Balloon — Proper. Where admissible evidence established the presence of heroin in balloon dropped by defendant on sidewalk as officers approached him, it was permissible under these circumstances, to instruct the jury on the subject. 4. DRUGS AND DRUGGISTS — Knowledge — Essential Element — Inferred — Control. Knowledge of the character of the drug is an essential element of possession, and such knowledge may be inferred when the offending item was in the dominion or control of the defendant. 5. WITNESSES — Character — District Attorney — Cross-Examination — Statute — Drugs — Disorderly Person — Error — Harmless. Where, on direct examination, defendant's character witnesses testified that defendant was known as a law abiding citizen, it was proper, under the circumstances, to allow district attorney to ask on cross-examination if their opinion would be the same if they knew that the defendant had been convicted of statute denominating as disorderly persons those who unlawfully use narcotic drugs; but it was error, however, to permit district attorney to read statute on cross-examination — although under the facts the error was de minimis and harmless.

1. CRIMINAL EVIDENCE — Photocopy — Registration — Motel — Proper — "Best Evidence" — Inapplicable. Where testimony of manager of motel established that defendant had registered at motel, and where, in addition, there was sufficient evidence to raise inference that original record of defendant's registration was lost, held, under these circumstances, "best evidence" rule did not apply and admission of photocopy of defendant's registration card at motel was proper. 2. WITNESSES — Stand — Prior Felony Conviction — Motion to Suppress — Denial — Proper. Where defendant took witness stand and testified, held, under such circumstances, denial of defendant's motion to suppress his prior felony conviction was proper. 3. Defendant — Stand — Tests — Credibility — Same — Other. A defendant who takes the witness stand is subject to the same tests of credibility as any other witness.<page_number>Page 342</page_number>

1. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Large-scale Overall Planning — Prevention of</italic><italic>Slums.</italic> Large-scale planning is necessary to restore health to cities and to prevent slums from expanding to enlarge the cycle of decay.<page_number>Page 412</page_number> 2. <bold>EMINENT DOMAIN</bold> — <italic>Power of Government.</italic> The power of eminent domain is merely one method of exercising the power of government. 3. <bold>COURTS</bold> — <italic>Inquire — Wisdom — Legislative — Negative.</italic> The judicial branch does not inquire into the wisdom of a legislative decision. 4. <bold>STATES</bold> — <italic>Legislature — Freedom of Choice — Governmental End.</italic> The legislature is free to choose any method which is appropriate to reach a governmental end. 5. <bold>CONSTITUTIONAL LAW</bold> — <italic>Free Exercise of Religion</italic>. The right to free exercise of religion is still vital in today's constitutional law. 6. <italic>Religion — Shielded — Conflicting Interests — Weighed.</italic> Although the exercise of religion must be stoutly shielded, yet, in any particular case the conflicting interests must be weighed. 7. <bold>EMINENT DOMAIN</bold> — <italic>Urban Renewal — State Interest — Justify Taking —</italic><italic>Property — Religious Uses.</italic> Urban renewal is a substantial state interest that can justify taking property dedicated to religious uses. 8. <bold>CONSTITUTIONAL LAW</bold> — <italic>First Amendment Freedoms — Judicial Branch —</italic><italic>Responsibility — Right of Review.</italic> The judicial branch cannot avoid its responsibility to guard constitutional rights by leaving the protection of First Amendment freedoms to the other branches without a right of review. 9. <italic>First Amendment Protection — Structures — Religious Faith.</italic> Religious faith and tradition can invest certain structures and land sites with significance which deserves First Amendment protection. 10. <bold>EMINENT DOMAIN</bold> — <italic>Church Property — Taken — Public Use.</italic> Church property is private property which can be taken by eminent domain for paramount public use. 11. <bold>CONSTITUTIONAL LAW</bold> — <italic>Religious Conduct — Regulation — State —</italic><italic>Challenge — Justify — Infringement.</italic> When regulating religious conduct, the state may be challenged to justify its infringement of the totally free exercise of religion. 12. <bold>EMINENT DOMAIN</bold> — <italic>State — Condemn — Church — Religious Services —</italic><page_number>Page 413</page_number><italic>Challenge — Justify — Use of Power.</italic> Where state sought to condemn building which was the birthplace of the church and which was used for religious services, it could be challenged to justify its use of its power of eminent domain. 13. <bold>RELIGIOUS SOCIETIES</bold> — <italic>Blanket Decisions — Deny — Church —</italic><italic>Consideration of Rights — Disapproved.</italic> Blanket decisions that deny a church an opportunity to have its rights considered are disapproved. 14. <bold>EMINENT DOMAIN</bold> — <italic>Church — Demolish — Urban Renewal — Office Building —</italic><italic>Day in Court.</italic> Supreme Court cannot uphold unreviewed general decision of urban renewal authority to condemn and demolish building which was birthplace of church and used for religious services and construct office building on the site; church is entitled to its day in court to determine which of the rights should prevail.