Volume 182 — Colorado Reports

1. <bold>BURGLARY</bold> — <italic>Specific Intent — Jury.</italic> In prosecution for burglary, the issue of specific intent was one for the jury to determine from all the evidence and the reasonable inferences that could be drawn therefrom. 2. <italic>Evidence — Guilt — Specific Intent — Reviewing Court — Substitution</italic><italic>of Judgment — Negative.</italic> In prosecution for burglary, record reflects sufficient competent evidence to support the jury's verdict of guilt, notwithstanding defendant's argument that he was drunk and therefore unable to form the specific intent to commit the crime of burglary; and reviewing court will not sit as a thirteenth juror, re-weigh the evidence, and substitute its judgment for that of the jury. 3. <bold>WITNESSES</bold> — <italic>Exclusion — Rule — Violation — Penalty — Discretion of</italic><italic>Court.</italic> The general rule regarding exclusion of witnesses has been stated as follows: Whether the exclusion is initially invoked, and if invoked, what constitutes a violation thereof, and even if it be determined that there was a violation, what penalty should be imposed or whether the offending witness should be allowed to testify — these are all matters resting within the sound discretion of the trial court. 4. <bold>CRIMINAL LAW</bold> — <italic>Communication — Officer — District Attorney — Felony</italic><italic>Record — Non-Prejudicial.</italic> Communication between officer and district attorney with regard to whether a witness had a felony record was not prejudicial to defendant. 5. <italic>Officers — Armed — Uniformed — Courtroom — Non-Prejudicial.</italic> Presence in courtroom of two armed uniformed officers did not constitute prejudicial error. 6. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Three — One Sheet — Error — Negative.</italic> Where trial court placed the following three instructions — burden of proof, presumption of innocence, reasonable doubt — on one sheet of paper, <italic>held</italic>, this, as such, did not constitute error on the theory that the jury was thereby confused; especially, where there was no claim that the instructions did not properly set forth the law.

1. <bold>COURTS</bold> — <italic>United States Supreme Court — Boykin v. Alabama —</italic><italic>Voluntariness of Plea — Retroactive — Negative.</italic> The United States Supreme Court case of <italic>Boykin V. Alabama</italic> — which requires courts to spread upon the record the finding of voluntariness of the guilty plea — does not apply retroactively.<page_number>Page 56</page_number> 2. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — 1967 Standards — Judge —</italic><italic>Correct.</italic> Where trial judge, at time defendant entered a plea of guilty in 1967, fully explained to him the consequences of his guilty plea and made certain the plea was voluntary, and where trial judge, after considering all the evidence at the 35(b) hearing, found that when defendant entered his plea of guilty, no deficiencies by 1967 standards existed to invalidate such plea at present time and under instant facts, <italic>held</italic>, under the circumstances, trial court's actions were correct. 3. <italic>Plea of Guilty — 1967 — No Prescribed Ritual — Rule.</italic> In 1967 — at the time the defendant entered a plea of guilty — there was no prescribed ritual or wording to be employed by the court under Colo. R. Crim. P. 11(a) with reference to the acceptance of a guilty plea. 4. <bold>CRIMINAL LAW</bold> — <italic>Counsel — Ineffective — Record — Negative.</italic> Claim of ineffective assistance of counsel asserted by defendant — who pled guilty to charge of conspiracy to possess narcotic drugs and who was represented by the same attorney as codefendant — is not sustained by the record. 5. <italic>Counsel — Representation — Both Clients — Evidence — Codefendant —</italic><italic>— Stronger — Weight.</italic> The mere fact that evidence against a codefendant is stronger goes to the weight of the evidence and does not by itself establish that counsel is unable to effectively represent both clients.

1. <bold>RELEASE</bold> — <italic>Mistake — Prognosis — Injuries — Self-Induced — Failure to</italic><italic>Communicate — Worsening — Collision.</italic> Notwithstanding contention of spouses that they and insurance claims adjuster were mistaken as to the severity and permanence of the wife's injuries at the time the release was signed, and that the release should be set aside on the ground of mutual mistake, nevertheless, record reflects that any mistake was one of prognosis and not<page_number>Page 66</page_number> of a past or present fact; moreover, the mistake in prognosis by the treating physicians was self-induced by the wife inasmuch as she had failed to communicate to them the continuation and worsening of her complaints arising out of rear-end automobile collision. 2. <bold>WORDS AND PHRASES</bold> — <italic>Prognosis.</italic> Prognosis speaks of the future course of recovery from a disease or injury, as indicated by its nature and the special circumstances of the case. 3. <bold>RELEASE</bold> — <italic>Contract — Relief — Mistake — Past or Present — Existing</italic><italic>Fact.</italic> In order to support a claim for relief from a contract to release the mistake relied upon must have been as to a past or present existing fact. 4. <bold>COMPROMISE AND SETTLEMENT</bold> — <italic>Public Policy.</italic> Public policy favors the settlement of disputes, provided they are fairly reached. 5. <bold>RELEASE</bold> — <italic>General — Fairly Obtained — Complete Bar.</italic> A general release duly executed and fairly obtained is a complete bar to further recovery for injuries sustained.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Incident to Arrest — Constitutional Limits.</italic> There are constitutional limits to the scope of a search incident to an arrest.<page_number>Page 81</page_number> 2. <bold>ARREST</bold> — <italic>Theatre — Failure to Pay Admission Fee — Search — Incident —</italic><italic>Furtive Gestures — Probable Cause — Negative.</italic> Where defendant was arrested for entering a theatre without paying the admission fee, police officer's search as incident to defendant's arrest was invalid, since defendant's "furtive gestures" did not give rise to probable cause to search him for evidence of an offense unrelated to that for which he was arrested. 3. <bold>SEARCHES AND SEIZURES</bold> — <italic>Incident to Arrest — Probable Cause — Minor</italic><italic>Municipal Offenses — Limitation.</italic> In a search conducted incident to an arrest, the arresting officers have authority to search for instrumentalities or evidence of the specific crime for which they had probable cause to arrest, but when persons are arrested for minor traffic violations or minor municipal offenses, the instrumentalities or evidence of such crimes are minimal or non-existent, thus the scope of a search incident to such an arrest would be quite limited. 4. <italic>Inventory — Incident — Lawful Incarceration — Minor Municipal</italic><italic>Offenses — Incarceration — Negative.</italic> It is not inconsistent to allow thorough inventory searches of an accused once inside the police station and to deny a thorough search prior to arrival at the place of detention, where an inventory search is an incident of lawful incarceration; but where considering the nature of municipal offenses, it is not unreasonable to assume that many persons charged with a minor municipal offense will not be incarcerated. 5. <italic>Incident to Arrest — Invalid — Entering Theatre Without Payment.</italic> Where marijuana seized was <italic>not</italic> discovered in plain view by a "frisk" of defendant for assaultive weapons, by a search of defendant for instrumentalities of evidence of the offense for which he was arrested, by an inventory search, or by a search for evidence or instrumentalities of an offense for which there existed probable cause, rather, the evidence was seized during a general exploratory search for which no probable cause existed, <italic>held</italic>, under the circumstances, search by officer of defendant was invalid as incident to defendant's arrest for entering a theatre without paying the admission fee.

1. <bold>STATES</bold> — <italic>Fire Protection — Importance.</italic> The protection of property generally, of which fire protection is an obvious example, is of basic and fundamental importance to all citizens of the state and the general public has a vital interest in the quality and reliability of that protection. 2. <bold>PENSIONS</bold> — <italic>Pension Plans for Firemen — State-Wide Concern.</italic> Pension plans for firemen have a direct bearing on the qualify of fire protection and are for that reason matters of state-wide concern. 3. <italic>Firemen — State-Wide Dimensions — Act — Inconsistent Provisions —</italic><italic>Ordinance — Invalid.</italic> In view of fact that subject of firemen's pensions is not exclusively local in nature but, rather, has state-wide dimensions, inconsistent provisions of city ordinance bearing on the question of firemen's pensions — insofar as they are in conflict with state's Firemen's Pension Act — are invalid, and provisions of the Act are applicable to the city. 4. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Pension Plan — Act — Confiscatory —</italic><italic>Negative — — Escalator Clause — One Mill.</italic> Despite city's claim that pension plan established in Firemen's Pension Act is actuarially unsound and that constitutional requirements place a confiscatory burden on city, the fears of an impending confiscatory burden on city and its taxpayers would not materialize under the Act, since, while the Act's escalator clause might eventually require funds in addition to one mill contribution required by the city, the Act limits the city's liability to one mill. 5. <bold>TAXATION</bold> — <italic>Firemen's Pension — State-Wide — One Mill Levy — Tax —</italic><italic>Violation — Constitution — Negative.</italic> In view of the fact that the matter of firemen's pensions is one of state-wide interest and concern, it cannot be said that the one mill levy called for by the Firemen's Pension Act is a tax imposed for city purposes in violation of the Colorado constitution.<page_number>Page 110</page_number> 6. <bold>CONSTITUTIONAL LAW</bold> — <italic>Firemen's Pension Act — Impair — Obligation of</italic><italic>Contracts — Negative.</italic> Firemen's Pension Act — contrary to city's contention — does not impair the obligation of contracts of employment in violation of the Colorado constitution.

1. <bold>CONSPIRACY</bold> — <italic>Verdict — Failure to Specify Crime — Nullity.</italic> A conspiracy verdict, which failed to specify the crime which was the subject of the conspiracy, was a nullity. 2. <bold>CRIMINAL LAW</bold> — <italic>Plain Error — Conspiracy — Guilty — Failure to Specify</italic><italic>Crime.</italic> Where defendant was found guilty of conspiracy without specifying the crime which was the subject of the conspiracy, it would be noticed as plain error by reviewing court. 3. <italic>Sentence — Separate — Each Conviction — Preferable Practice.</italic> Although a single sentence for more than one conviction will not be viewed as reversible error, the preferable practice, however, is to have a separate sentence for each conviction. 4. <italic>Error — Motion for New Trial — Brief — Failure to Mention — Waiver.</italic> Even though claimed error was mentioned in defendant's motion for new trial, nevertheless, defendant's failure to mention such error in his brief to reviewing court amounted to a waiver. 5. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Reference — Power of Defendant — Subpoena</italic><italic>Witnesses — Plain Error — Negative.</italic> Where prosecutor in his closing argument referred to defendant's power to subpoena witnesses to add to the case, <italic>held</italic>, prosecutor's statement, as such, does not reach the magnitude of plain error. 6. <bold>BURGLARY</bold> — <italic>Back Door — Knocked from Hinges — Automobile — Filled With</italic><italic>Furs — Freeze — Ran — Evidence.</italic> Record reflects sufficient evidence to sustain defendant's conviction for burglary where testimony introduced by<page_number>Page 145</page_number> the People indicated that defendant was observed at about 1:00 a.m. in a building which had the back door knocked completely from its hinges and near which an automobile filled with furs, rugs, hats, coats and various other items was parked, and who ran when told to "freeze" by officer.

1. <bold>CRIMINAL LAW</bold> — <italic>Submission to Jury — Introduce — Competent Evidence —</italic><italic>Every Element.</italic> In order to justify submission of a case to the jury, the People must introduce competent evidence going to each and every element of the crime charged. 2. <bold>THEFT</bold> — <italic>Receiving — Stolen Goods — Excess — One Hundred Dollars —</italic><italic>Essential Element.</italic> One of the essential elements of both the felony offenses of theft and theft receiving is that the stolen goods must be of a value in excess of one hundred dollars. 3. <bold>RECEIVING STOLEN GOODS</bold> — <italic>Prima Facie Case — Evidence — Market Value.</italic> To make a <italic>prima facie</italic> case of receiving stolen goods of a value in excess of one hundred dollars, it is incumbent upon the People to present competent evidence of the reasonable market value of the goods in question at the time of the commission of the alleged offense. 4. <bold>WITNESSES</bold> — <italic>Theft — Receiving Stolen Goods — Owner — Competent —</italic><italic>Value — — Time — Commission of Crime.</italic> While an owner of goods is always competent to testify as to the value of his property, in prosecution for theft and receiving stolen goods, such testimony must relate to the value of the goods at the time of the commission of the crime. 5. <bold>THEFT</bold> — <italic>Receiving Stolen Goods — Testimony — Owner — Purchase Price —</italic><italic>Competent — Fair Market Value — New.</italic> In prosecution for theft and receiving stolen goods, testimony by owner of goods as to their original purchase price is competent evidence of fair market value only if the goods<page_number>Page 149</page_number> are so new — and thus have depreciated in value so insubstantially — as to allow a reasonable inference that the purchase price is comparable to current fair market value. 6. <italic>Receiving Stolen Goods — Testimony — Owner — Purchase Price — Radio —</italic><italic>— Light Bar — Incompetent — Fair Market Value.</italic> In prosecution for theft and receiving stolen goods, testimony of owner as to purchase price of radio and light bar was not competent evidence as to fair market value of such items where they were at least three years old at the time of taking. 7. <italic>Owner — Lack of Knowledge — Fair Market Value — Jury — Speculation —</italic><italic>— Removal — Proper.</italic> In prosecution for theft and receiving stolen goods, where owner specifically stated on cross-examination that he did not know the fair market value at time of commission of crime, and where jury would have had to base its determination of the value of the goods in question at the critical time on pure speculation, <italic>held</italic>, under these circumstances, trial judge properly removed case from jury's consideration. 8. <bold>CRIMINAL LAW</bold> — <italic>Theft — Receiving Stolen Goods — Submission —</italic><italic>Misdemeanor Counts — First Raised on Appeal — Not Timely.</italic> Where record reveals that the People were relying on either a conviction on the felony counts of theft and receiving stolen goods or an acquittal, and question of submission to the jury of misdemeanor counts was first raised on appeal,<italic>held</italic>, this question, as such, was not timely raised.

1. <bold>PERJURY</bold> — <italic>Indictment — Definite — Inform — Charges — Sufficient.</italic> Where indictment for perjury was sufficiently definite to inform defendant of the charges against him so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecutions for the same offense, <italic>held</italic>, as such, the indictment was sufficient; and an affirmative pleading of facts to show the truth was not required. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Perjury — Testimony — Detective — Crime — Nexus —</italic><italic>Admission — Proper — Stipulation — Grand Jury.</italic> In prosecution for perjury, where trial court admitted testimony of detective implicating defendant in alleged crime having a strong nexus with crime as to which he was alleged to have testified falsely, <italic>held</italic>, in so doing, trial court did not err; this testimony was admissible for purposes of showing knowledge of, and motive for perjury; moreover, the stipulation that the testimony set out in the indictment was material to the grand jury investigation did not foreclose admission of other material evidence. 3. <bold>PERJURY</bold> — <italic>Proof — Conviction.</italic> To support a conviction for perjury in this jurisdiction, the offense must be proved by the testimony of two witnesses or the testimony of one witness and independent, corroborating evidence which is deemed of equal weight to the testimony of another witness. 4. <italic>Testimony — Three Witnesses — Demonstrate — Falsity — Sufficient —</italic><italic>Conviction — Two Witness Rule.</italic> The effect of the testimony of the three witnesses in instant case — which was to demonstrate the falsity of defendant's assertions of non-involvement in the matters under investigation by the grand jury — was sufficient to support perjury conviction under the "Two Witness Rule."<page_number>Page 167</page_number> 5. <italic>Two Witness Rule — Omission — Instruction — Corroborating Evidence —</italic><italic>— Harmless Error.</italic> Under "Two Witness Rule" applicable to prosecutions for perjury, omission from instruction of requirement that the corroborating evidence must be deemed of equal weight to the testimony of another witness was harmless error inasmuch as there was direct testimony by three witnesses contradicting defendant's grand jury testimony.

1. <bold>CRIMINAL LAW</bold> — <italic>Free Transcript — Need Not be Provided — Vain and</italic><italic>Useless.</italic> A free transcript need not be provided when the furnishing of a transcript would be a vain and useless gesture. 2. <italic>Free Transcript — Driving Under Influence — Bodily Injury — Guilty —</italic><italic>Allegations — without Merit — Vain and Useless Gesture — Denial of Relief —</italic><italic>Proper.</italic> Where petitioner, who pled guilty to inflicting bodily injury by driving while intoxicated now seeks a free reporter's transcript, having submitted an affidavit of indigency in support of his motion to proceed in<italic>forma pauperis</italic>, and an examination of petitioner's motion reveals that his allegations are of a conclusory and general nature or without merit on the face of the record, <italic>held</italic>, under these circumstances, denial of petitioner's motion by respondent judge — who stated that to furnish a free transcript in the case would be "a vain and useless gesture" — was proper; the record does not justify granting the relief sought.

1. <bold>COLLEGES AND UNIVERSITIES</bold> — <italic>Non-Student — Access — Denial — Due</italic><italic>Process.</italic> A non-student's right to access to university functions and facilities, which are open to the public-at-large, cannot be permanently denied without due process of law under the Fourteenth Amendment to the United States Constitution. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Regulation — Vague — Guess — Meaning — Due Process</italic><italic>Clause.</italic> The due process clause, in part, requires that a regulation not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. 3. <bold>COLLEGES AND UNIVERSITIES</bold> — <italic>Regulation — Right to Exclude — Individuals</italic><italic>— Detrimental — Vague — Negative.</italic> Regulation adopted by Regents of University of Colorado, pursuant to grant of general supervisory power over university under Colorado constitution, which reads — "The University acting through its administrative officers, reserves the right to exclude those deemed detrimental to its well-being or incompatible with its function as an educational institution" — and whose clear intent was to protect university against persons whose activities disrupt functioning of university as an educational institution, was not so impermissibly vague as to be violative of "due process" clause of Fourteenth Amendment to United States Constitution. 4. <italic>Exclusion Order — Lack of Procedural Due Process — Hearing —</italic><italic>Denial — Void.</italic> Where university's exclusion order was issued without procedural due process in that a hearing was not afforded non-student prior to his exclusion from university's property, <italic>held</italic>, under the circumstances, the order was void. 5. <italic>Disciplinary Action — Procedural Due Process — Required — Students —</italic><italic>— Non-Students.</italic> Where students have been subjected to disciplinary action by university officials, courts have recognized that procedural due process requires — prior to imposition of disciplinary action — adequate notice of the charges, reasonable opportunity to prepare to meet the charges, an<page_number>Page 309</page_number> orderly administrative hearing adapted to the nature of the case, and a fair and impartial decision; and the same protections must be afforded non-students who may be permanently denied access to university functions and facilities. 6. <italic>Regulation — Denial — Access — Non-Students — Provision —</italic><italic>Adjudicators.</italic> University regulation pertaining to permanent denial of access to non-students to university functions and facilities on the basis of such non-students' disruptive behavior should include a provision with regard to person or persons who will act as adjudicators. 7. <italic>Non-Students — Access — Suspended — Emergency — Without Prior</italic><italic>Hearing — Hearing — Thereafter — Promptness.</italic> When a genuine emergency appears to exist and it is impractical for university officials to grant a prior hearing with respect to exclusion of non-students from access to university due to disruptive behavior, such right of non-students to access to the university may be suspended without a prior hearing, so long as a hearing is thereafter provided with reasonable promptness.

1. <bold>ARREST</bold> — <italic>Search — Officers — Probable Cause — Standards — Same.</italic> The same constitutional standards for determining probable cause apply whether a search or an arrest is being effected by police officers. 2. <italic>Search — Standards — Same — Warrant — Authorized.</italic> The same constitutional standards of probable cause are applicable whether or not the officers have obtained a judicially authorized warrant to arrest or search. 3. <bold>SEARCHES AND SEIZURES</bold> — <italic>Warrantless — Per Se Unreasonable —</italic><italic>Exceptions.</italic> The basic constitutional rule regarding warrantless searches<page_number>Page 329</page_number> and seizures is that they are <italic>per se</italic> unreasonable, subject to a few specifically established and well-delineated exceptions. 4. <bold>ARREST</bold> — <italic>Warrantless — Police Officer — Statute.</italic> C.R.S. 1963, 39-2-20 permits a warrantless arrest by a police officer when the officer has reasonable grounds for believing that the person to be arrested has committed a criminal offense. 5. <italic>Warrant — Warrantless — Suspicion — Negative.</italic> An arrest with or without a warrant must stand upon firmer ground than suspicion. 6. <italic>Informant — Reliable — Sale of Heroin — Hotel Lounge — Verification —</italic><italic>— Police — Probable Cause — Aguilar-Spinelli.</italic> Where police officers received information from informant, who had previously provided reliable information, indicating that defendant was selling heroin in specified hotel lounge, and where officers verified informant's identification of defendant and his description of purple suede coat she was wearing prior to her arrest, <italic>held</italic>, under the <italic>Spinelli-Aguilar</italic> two-pronged test, probable cause existed to arrest the defendant. 7. <bold>SEARCHES AND SEIZURES</bold> — <italic>Arrest — Transport — Police Headquarters —</italic><italic>Search — Female Matron — Remote — Negative.</italic> Where police officers, who had probable cause for arrest of defendant, transported her to police headquarters immediately after her arrest so that female matron might conduct a search according to police regulations, <italic>held</italic>, under these circumstances, failure to conduct a search immediately after arrest did not vitiate the search, and search at police headquarters was not too remote in time or place.