Volume 183 — Colorado Reports

1. <bold>EMINENT DOMAIN</bold> — <italic>Condemnation — Temporary Possession — Interlocutory —</italic><italic>Review — Original Proceeding.</italic> Because an order for temporary possession in condemnation proceeding is clearly interlocutory, any review must be by an original proceeding. 2. <italic>Negotiations — Pipeline Company — Landowners — Futile — Evidence —</italic><italic>Support — Findings.</italic> Where trial court found that there had been negotiations between pipeline company and landowners regarding compensation to be paid for right-of-way easement and it was implicit in its findings that further negotiation would have been futile, <italic>held</italic>, record reflects sufficient evidence to support the findings.<page_number>Page 77</page_number> 3. <italic>Condemnation — Pipeline Company — Proper Entity — Statute.</italic> Pipeline company — which had a 90% interest in pipeline venture, furnished all construction costs for the line in Colorado, would operate it, and, although a Kansas corporation, was authorized to do business in Colorado — was proper entity to bring action under C.R.S. 1963, 50-5-5 to condemn pipeline right-of-way 50 feet in width across adjoining properties of landowners. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Eminent Domain — Private Property — Use — Public —</italic><italic>Judicial Approval.</italic> Constitutional provision — which declares that question whether contemplated use of private property be really public shall be a judicial question and determined as such without regard to any legislative assertion that the use is public — requires judicial approval of the purpose as a public use. 5. <bold>EMINENT DOMAIN</bold> — <italic>Pipeline — Interstate Commerce Commission — Public —</italic><italic>Support — Record.</italic> Where record discloses that pipeline is to be operated under the jurisdiction of the Interstate Commerce Commission and therefore its operation as a common carrier will be mandatory under federal law,<italic>held</italic>, under the circumstances, court's conclusion that this will be a public use is amply supported by the record. 6. <italic>Necessity of Taking — Determination — Court — Statute.</italic> In condemnation proceeding, question of necessity of taking of private property for public use is a question to be determined by the court within the purview of C.R.S. 1963, 50-1-1. 7. <italic>Differences — Negotiations — Footages — Fraud — Bad Faith — Lack of</italic><italic>Attack — Temporary Possession.</italic> Where, during negotiations, it was indicated to one of the landowners that a 35-foot easement would be required and pipeline company sued to condemn a 50-foot easement, the landowners now claim that this invalidates order of temporary possession,<italic>held</italic>, since record shows affirmatively that result of negotiations would have remained unchanged had matter been stated correctly, and since the only attack by landowners under this point would be to contend that pipeline company was acting fraudulently or in bad faith, landowners' claim fails as they have not made such attack.

1. <bold>ZONING</bold> — <italic>Review — Certiorari — Thirty Days — Rule — Controlling.</italic> On<page_number>Page 169</page_number> actions to review rezoning decision of county commissioners — since the statutes on county rezoning do not provide time limits to review county commissioners' actions — the rule requiring certiorari to be brought not later than thirty days from the date of the rezoning decision is controlling. 2. <bold>ASSOCIATIONS</bold> — <italic>Suit — Unincorporated Associations — Rules — Loosely</italic><italic>Formed Group — Negative.</italic> C.R.C.P. 17 is procedural, providing how a legally constituted entity may bring its action; it does not, however, grant the right to sue to a loosely formed group. 3. <italic>Unincorporated — Status.</italic> The status of an unincorporated association must be founded on more than a bald allegation. 4. <italic>Unincorporated — Sue — Name only — Insufficient.</italic> To sue as as unincorporated association in name only is insufficient; such legal entity must in fact exist. 5. <italic>Unincorporated — Common Law.</italic> Since Colorado has no statutes pertaining to unincorporated associations, the common law must govern their existence. 6. <italic>Unincorporated — Characterized.</italic> An unincorporated association is characterized by having by-laws governing its organization and operation, stated purpose for its existence, provision for continuity though membership may change, and responsible officers, elected according to by-laws, whose duties and responsibilities may be ascertained and upon whom valid process may be had. 7. <italic>Failure to Show — Legally Constituted — Individual Landowners —</italic><italic>After Filing Date — Adopt — Negative.</italic> Where loosely formed association of landowners — which purported to bring action challenging rezoning — made no showing that it was a legally constituted unincorporated association, no valid legal action had been brought by legal entity with capacity to sue,<italic>held</italic>, under the circumstances, individual landowners, who joined in suit as plaintiffs after filing date, could not adopt association's pleadings and filing date and make it their own. 8. <bold>ZONING</bold> — <italic>Indispensable Party — Right — Rezoning — Commissioners —</italic><italic>Defenses.</italic> Development company, which was an indispensable party to proceeding below, had a right to rezoning established by action of county<page_number>Page 170</page_number> commissioners, and that right cannot be abrogated by judicial action unless company is before the court to assert its defenses. 9. <bold>JUDGMENT</bold> — <italic>Indispensable Party — Not Joined — Void.</italic> A judgment which adversely affects an indispensable party who is not joined is void. 10. <bold>PARTIES</bold> — <italic>Indispensable — Failure to Join — Court — Dismissal.</italic> Where an indispensable party to an action has not been joined, the court may dismiss the action on its own motion. 11. <bold>ZONING</bold> — <italic>Indispensable Party — Development Company — Failure to Join —</italic><italic>Dismissal.</italic> Where development company, whose property was subject of dispute, was not joined by surrounding landowners in their suit to set aside rezoning action by Board of County Commissioners, <italic>held</italic>, under the circumstances, suit should have been dismissed for failure to join indispensable party.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Postconviction Motion — Burden of Proof —</italic><italic>Preponderance.</italic> The burden of proof in a Rule 35(b) postconviction motion is on the petitioner to establish his allegations by at least a preponderance of the evidence. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Review — Judgment — Support — Findings — Holdings.</italic> Where the evidence before the trial court amply supports the findings and holdings of the trial court, that judgment will not be disturbed on review. 3. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — Involuntary — Threats — Leniency.</italic> A plea of guilty is clearly involuntary if it is induced by threats or by a promise of a lenient sentence. 4. <italic>Plea of Guilty — Bargaining — Not Honored — Vacated.</italic> If a plea of guilty results from plea bargaining and the bargain is not honored, the judgment must be vacated. 5. <italic>Procuring Food or Accommodations — Intent to Defraud — Plea —</italic><italic>Voluntary — Ruling — Support — Record.</italic> Where record of hearing on defendant's Rule 35(b) postconviction motion was devoid of any evidence of any promise made or authorized by the court or district attorney, other than the defendant's statement that he was relying upon the information given to him by his attorney, his attorney stating that the court had made no promises, but made no statement as to any communication with the district attorney, <italic>held</italic>, under the circumstances, trial court's ruling on the voluntariness of the plea of <italic>nolo contendere</italic> to charge of procuring food or accommodations with intent to defraud was amply supported by the record. 6. <italic>Providency Hearings — Properly Conducted — Binding.</italic> Providency hearings when properly conducted are binding upon the parties, and defendant's presumption that a providency hearing is meaningless will not rise to the dignity of a defense to its consequences. 7. <italic>Failure to Raise — Allegation — Postconviction Relief — Motion —</italic><italic>Review — Negative.</italic> Allegation — that advisement given to him by trial court prior to accepting his plea of <italic>nolo contendere</italic> was not in compliance<page_number>Page 178</page_number> with Crim. P. 11, in that court failed to sufficiently ascertain that defendant understood the nature of the charge by explaining to him the elements of the offense — which was not raised in defendant's postconviction relief motion was not properly before Supreme Court for review.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Driver — Ready-Mix Firm — Construction</italic><italic>Company — — Carrier — Third-Party — Suit Against Employer — Hilzer v.</italic><italic>MacDonald — Inapplicable.</italic> Where truck driver for ready-mix concrete firm brought action against construction company for injuries sustained as a result of falling cinder block or brick while making delivery of cement to construction company and company brought in automobile liability carrier of ready-mix firm as third-party defendant, and where no one claimed that ready-mix firm was in any way responsible for driver's negligence, <italic>held</italic>, under these circumstances, argument of carrier — that driver was in effect suing his own employer and therefore was barred — was not correct; <italic>Hilzer v. MacDonald</italic> inapplicable. 2. <bold>INSURANCE</bold> — <italic>Doctrines — Coming To Rest — Complete Operation — Law —</italic><italic>Colorado.</italic> There are two unloading doctrines: that of "coming to rest" and that of "complete operation." Under the "coming to rest" doctrine, unloading comprises only the actual removing or lifting of the article from the loaded vehicle to the moment when it again comes to rest. The<page_number>Page 189</page_number> "complete operation" doctrine, embraces the entire process involved in the movement of goods from the time they are given into the insured's possession until the insured has completed delivery thereof; and this latter doctrine is the law in Colorado. 3. <italic>Truck Driver — Injured — Cinder Block or Brick — Conclusion — Court</italic><italic>of Appeals — Reversed — Loading and Unloading — Policy.</italic> Where truck driver for ready-mix concrete firm was struck on head by falling cinder block or brick while unloading truck of cement at construction site and brought action against construction company and ready-mix company's automobile liability insurer for injuries sustained, conclusion of Court of Appeals — "that, as a matter of law, the unloading was completed when the cement came to rest in the hopper," even though further cement was to be unloaded from the truck — is reversed; insofar as policy provisions are concerned — which defined insured as any person using automobile owned by firm and which stated that "Use of automobile includes the loading and unloading thereof" — — it is immaterial whether driver was injured when grout was being poured into hopper or in an interval between such operations. 4. <italic>Complete Operation Doctrine — Law — Colorado — Unloading — Cement —</italic><italic>Cessation — Time of Accident — Negative.</italic> Supreme Court holds that "complete operation" doctrine is the law in Colorado; hence, unloading of cement by truck driver for ready-mix cement firm — who was injured by falling cinder block or brick at construction site after having unloaded some cement and was waiting to unload more — had not ceased at time of accident. 5. <italic>Loading or Unloading — Determination — Liability — Proximate Cause —</italic><italic>— Negative — Causation — Contracts.</italic> Liability of insurer for injuries sustained by its insured while loading or unloading truck would not be determined by tort rules of proximate cause but rather by rules of causation in the field of contracts. 6. <italic>"But For" Test of Causation — Causal Relationship — Unloading —</italic><italic>Injury.</italic> With respect to the matter of whether there was a sufficient causal relationship between the discharge or unloading of the truck and the injury to the truck driver of the ready-mix concrete firm, reviewing court will apply the so-called "but for" test of causation. 7. <italic>Truck Driver — Cement — Construction Site — Causative Relationship —</italic><page_number>Page 190</page_number><italic>— Unloading — Accident — Insurer — Liable.</italic> Where plaintiff, a truck driver for ready-mix concrete firm, was injured by falling cinder block or brick at construction site and brought action against construction company and ready-mix firm's automobile liability insurer for injuries sustained while making delivery of cement to construction company in truck on which insurer provided liability coverage, reviewing court is of the view that there was a sufficient causative relationship between the unloading of the truck and the accident and insurer was therefore liable under the provisions of the policy.

1. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Land — Grant — State — Assessment —</italic><italic>City Against State — Prohibited.</italic> Land granted to state and placed in perpetual public trust for use for educational purposes, pursuant to Section 7 of the Colorado Enabling Act and subject to restrictions imposed under Sections 3 and 5 of Article IX of the Colorado Constitution, was not subject to assessment in special improvement district created by municipality; hence, neither district nor city can assert lien against it, nor can there be money judgment against state, which holds such school land in trust for specific purposes enumerated.

1. <bold>CRIMINAL LAW</bold> — <italic>Verdict — Setting Aside — Prejudice — Discretion of</italic><italic>Court.</italic> In order to constitute grounds for setting aside a verdict because of unauthorized or improper communication with the jury the defendant must show that he was prejudiced thereby; the determination of whether prejudice has occurred, however, is within the sound discretion of the trial court and only where that discretion has been abused will a new trial be ordered. 2. <bold>JURY</bold> — <italic>Discussion — Officers — Supper — Separated — Prejudice —</italic><italic>Negative — New Trial — Denial.</italic> Where affidavits indicated that jurors did not discuss the case with officers who drove them to restaurant for supper and where defendants made no showing that they were prejudiced by the jury's having been separated, <italic>held</italic>, under the circumstances, denial of a new trial was not an abuse of discretion. 3. <bold>WITNESSES</bold> — <italic>Impeachment — Felony Convictions — Over Five Years —</italic><italic>Statute — Constitutional.</italic> C.R.S. 1963, 154-1-1 which permits impeachment<page_number>Page 229</page_number> in a criminal case by felony convictions over five years old, while such impeachment is not permissible in a civil proceeding — does not deny equal protection of the law.

1. <bold>GRAND JURY</bold> — <italic>Investigators — Interrogation — Comments — Not Under</italic><italic>Oath — — Dismissal of Indictments — Proper.</italic> Where investigators for the grand jury interrogated the defendant and other witnesses and made comments or<page_number>Page 237</page_number> statements to the grand jury during the course of the interrogation and it did not appear that the investigators were under oath, <italic>held</italic>, under the circumstances, trial court acted properly in dismissing the indictments. 2. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Prosecutor — Disagreed — Motion to Dismiss</italic><italic>— Investigators — Grand Jury — File — Counter Affidavits.</italic> If the special prosecutor disagreed with the allegations in the affidavits attached to motion to dismiss indictments — that several of the special investigators participated in the questioning of witnesses before the grand jury — he should have filed counter affidavits or called witnesses to dispute the allegations at the time of the hearing. 3. <italic>Motion to Dismiss — Statements — Affidavits — Evidence.</italic> On motion to dismiss indictments, trial court was justified in considering statements in the affidavits in support of the motion as evidence of the facts asserted. 4. <italic>Mere Presence — Insufficient — Invalidate.</italic> "Mere presence" of investigators may not in and of itself be sufficient to invalidate the indictment in a given case unless prejudice is shown.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Venue — Change — Prejudice — Mistrial —</italic><italic>Discretion.</italic> Disposition of motion for change of venue due to local prejudice as well as a motion for mistrial are matters which are vested within the trial court's discretion. 2. <bold>CRIMINAL LAW</bold> — <italic>Publicity — Massive Presumption — Fair Trial — Denial.</italic> Denial of a fair trial may be presumed when publicity is massive, pervasive and prejudicial. 3. <bold>JURY</bold> — <italic>Mistrial — Change of Venue — Denial — Pretrial Publicity —</italic><italic>Massive — Taint — Prejudice — Negative.</italic> In prosecution for aggravated robbery, where record reflects that pretrial publicity was neither massive nor pervasive — aside from failure of defendant to demonstrate how jury was tainted, — and all prejudice, if any, was eliminated when trial court and defense counsel excused all jurors who had read any of the allegedly prejudicial newspaper article, <italic>held</italic>, under these circumstances, trial court did not err in denying defendant's motions for mistrial and change of venue.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea — Guilty — Guidelines — Rule — Inform —</italic><italic>Waiver — Rights — Negative.</italic> Crim. P. 11 sets forth the required guidelines for the entry of a plea upon arraignment; but nowhere within its provisions does this rule, in connection with the entry of a plea of guilty, require the trial court to inform the defendant that by pleading guilty he was waiving his right to confront his accusers and his right to remain silent before accepting a guilty plea. 2. <bold>COURTS</bold> — <italic>United States Supreme Court — Boykin v. Alabama — Guilty Plea</italic><italic>— Acceptance.</italic> The United States Supreme Court decision of <italic>Boykin v.</italic><italic>Alabama</italic> established the principle that it was a voluntary and knowledgeable act and that such cannot be presumed from a silent record.<page_number>Page 259</page_number> 3. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — Waiver — Jury Trial —</italic><italic>Inference — — Confrontation — Silence — Invalidation of Plea —</italic><italic>Negative.</italic> Where, upon pleading guilty, defendant was advised that he was waiving his right to a trial by jury, <italic>held</italic>, under the circumstances, defendant was inferentially informed that he was waiving his right to confront his accusers and his right to remain silent during trial; and failure to specifically inform defendant that he was waiving those rights did not invalidate his plea of guilty. 4. <italic>Plea of Guilty — Formal Ritual — Not Required — Rule.</italic> Adherence to a formal ritual is not required by Crim. P. 11 with reference to the acceptance of a guilty plea by the trial court. 5. <italic>Pleas — Rule — Requirements.</italic> Rather than prescribing any ritualistic formula with reference to the acceptance of a guilty plea, Crim. P. 11 and the Constitution require only that a defendant be aware of the elements of the offense and that he voluntarily and understandingly acknowledge his guilt after being made aware of his various rights as outlined in the pertinent rule. 6. <italic>Pleas of Guilty — Prior — Defendant — Understood — Elements of</italic><italic>Crime.</italic> Record reveals substantial evidence to support trial court's finding in 35(b) hearing that defendant, prior to pleading guilty to the felony charge of theft, fully understood the nature and all the elements of the crime with which he was charged. 7. <italic>Plea of Guilty — No Promise of Probation — Record — Support.</italic> Where record reveals that defendant, in response to a question by trial court before his entry of a guilty plea, stated that no one had promised probation or other disposition if he entered a guilty plea, and court found after 35(b) hearing that there was no undue influence exerted upon defendant at time he plead guilty, it is obvious that court disbelieved defendant's testimony — that he was acting under guarantee of one of his attorneys that he would receive probation as a result of his pleading guilty — and attributed greater weight to record in which defendant stated that probation had not been promised.

1. <bold>SHERIFFS AND CONSTABLES</bold> — <italic>Menacing — Deadly Weapon — Felony — Criminal</italic><italic>Mischief — Misdemeanor — Abuse of Discretion.</italic> Where sheriff was charged with felony of menacing marshall with a deadly weapon and misdemeanor of criminal mischief, and court found after preliminary hearing that there was probable cause as to the misdemeanor but dismissed the felony count, <italic>held</italic>, in finding that elements of felony were not shown, that the marshall's fear was not of imminent or immediate injury and that there was no probable cause to justify prosecution of the sheriff, trial court abused its discretion.

1. <bold>JUDGMENT</bold> — <italic>Res Judicata — Claim Preclusion — Existing — Conclusive.</italic> Res judicata in the strict sense refers to "claim preclusion," and this doctrine holds that an existing judgment is conclusive of the rights of the parties in any subsequent suit on the same claim. 2. <italic>Res Judicata — Bar — Regulation.</italic> Res judicata doctrine bars relitigation not only of all issues actually decided, but of all issues that might have been decided. 3. <italic>Res Judicata — Identity of Parties — Privies.</italic> Res judicata doctrine requires an identity of parties or their privies. 4. <italic>Collateral Estoppel — Issue Preclusion.</italic> The doctrine of<page_number>Page 345</page_number> "collateral estoppel" refers to "issue preclusion"; and this doctrine holds that the final decision of a court on an issue actually litigated and determined is conclusive of that issue in any subsequent suit. 5. <italic>Collateral Estoppel — Res Judicata.</italic> Collateral estoppel is broader than res judicata in that is applies to a cause of action different from that involved in the original controversy; it is narrower, however, in that it does not apply to matters which could have been litigated but were not. 6. <italic>Copassenger — Previous Action — Contributory Negligence — Assumption</italic><italic>of Risk — No Determination — Deprivation.</italic> Where host driver, who was sued by passenger for injuries sustained in collision, asserted the defenses of contributory negligence and assumption of risk, but in previous action in which copassenger recovered judgment against host driver no determination was made concerning issues of contributory negligence or assumption of risk, <italic>held</italic>, under these circumstances, application of doctrine of collateral estoppel in instant action deprived host driver of his day in court; especially, since issues in previous cases were not identical to issues in instant case, and also since host driver was not afforded a full and fair opportunity to litigate issues of instant case in previous case involving other copassenger. 7. <bold>AUTOMOBILES</bold> — <italic>Contributory Negligence — Assumption of Risk — Personal</italic><italic>Defenses — One — Not Another.</italic> Contributory negligence and assumption of risk are personal defenses which may apply to one passenger in automobile suing host driver and not to another. 8. <bold>NEGLIGENCE</bold> — <italic>Contributory — Assumption of Risk — Fact Questions —</italic><italic>Determination.</italic> Contributory negligence and assumption of risk are fact questions which a litigant is entitled to have determined even though there may be no conflict in the evidence, so long as reasonable men might draw different conclusions therefrom. 9. <italic>Imputed — Passenger — Negative.</italic> One passenger's fault or freedom from fault simply cannot be imputed to another; each must stand or fall on his own conduct. 10. <bold>JUDGMENT</bold> — <italic>Collateral Estoppel — Issue — Willful and Wanton Negligence</italic><italic>— Previous Action — Copassenger.</italic> Where the issue of host driver's willful and wanton negligence in operating automobile which collided with tree causing injury to passenger had been litigated in previous action by<page_number>Page 346</page_number> copassenger, doctrine of collateral estoppel could properly have been applied in the second action to the issues of willful and wanton negligence.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Separate Trial — Motion — Discretion of Court.</italic> A motion for a separate trial is addressed to the sound discretion of the trial court. 2. <italic>Severance — Necessity — Test.</italic> The necessity of severance is tested by the standard that it must be "deemed appropriate to promote a fair determination of the guilt or innocence of a defendant." 3. <italic>Separate Trials — Determination — Factors.</italic> In determining whether separate trials are necessary, the following factors are to be considered: (1) Whether the number of defendants or the complexity of the evidence is such that the jury will probably confuse the evidence and law applicable to each defendant; (2) whether evidence inadmissible against one defendant despite admonitory instructions; (3) whether there are antagonistics defenses. 4. <italic>Separate Trial — Refusal — Proper — Homicide — Cabdriver — Evidence</italic><italic>— Fingerprint — Bloody Clothes — Prejudice — Negative.</italic> Where neither number of defendants nor complexity of evidence would precipitate jury confusion, and admonitory instructions were given upon admission of fingerprints and clothes, and where both defendants testified and presented essentially congruent evidence and proof of each defendant's guilt was not discernibly disparate, <italic>held</italic>, under the circumstances, refusal of separate trial to defendant, who was charged with three others with kicking cabdriver to death and who was tried jointly with one codefendant, was not error by virtue of admission into evidence of fingerprint and bloody<page_number>Page 379</page_number> clothes of codefendant — which were inadmissible against defendant — so as to have prejudiced defendant and denied him a fair trial. 5. <italic>Discovery — Felony Records — Witnesses for People — Standards —</italic><italic>Rule — Abuse — Prejudice.</italic> Trial court must exercise sound discretion in permitting a motion for discovery of felony records of persons listed on the information as witnesses for the People; it must be guided by the standards suggested in subsection (2) of Crim. P. 16(c), and to show an abuse of such discretion on appeal, the facts must reveal that defendant was prejudiced. 6. <italic>Discovery — Denial — Failure of Counsel — Ask — Witness — Felony</italic><italic>Conviction.</italic> Where defense counsel had not asked any witness on cross-examination whether he had been convicted of a felony and there was total absence of any suggestion of a prior felony conviction, <italic>held</italic>, under the circumstances, denial of motion for discovery of felony records of witnesses for the People was not an abuse of discretion. 7. <italic>Discovery — Statements of Witnesses — Denial — Lack of Prejudice.</italic> Where there was no indication that witnesses' statements were withheld by the People or that they existed in written form, <italic>held</italic>, under the circumstances, denial of defendant's motion for discovery of statements of witnesses for People was not prejudicial. 8. <bold>HOMICIDE</bold> — <italic>Expert — Testimony — Spatters of Blood — Murder of Cabdriver</italic><italic>— Preclude — Comment — Denial — Lack of Error.</italic> In prosecution for murder of a cabdriver, where prosecutor's only comment — on testimony of People's expert witness on cross-examination concerning spatters of blood on defendant's clothing — was to invite jury to view stains as they appeared on defendant's clothing, which was admitted into evidence and to draw their own conclusion <italic>held</italic>, under the circumstances, denial of defendant's motion to preclude prosecutor from commenting further as to form of bloodstain on defendant's clothing was not error. 9. <bold>WITNESSES</bold> — <italic>Expert — Bloodstains — Pinhead to Penny — Spatters — Murder</italic><italic>— Unresponsive — Negative.</italic> Where People's expert witness in murder prosecution was questioned on cross-examination by defense counsel as to size of bloodstains and answered by saying they ranged in size from that of a pinhead to a penny, some of them appearing to have been deposited in the<page_number>Page 380</page_number> form of spatters, <italic>held</italic>, since the answer did explain that the stains were small rather than smeared or soaked, it was not totally without bearing on question posed by defense; hence, it was not subject to being stricken as unresponsive. 10. <bold>CRIMINAL EVIDENCE</bold> — <italic>Bloodstains — Expert — Spatters — Explanation —</italic><italic>Participation — Fight — Killing — Relevant — Prejudice — Negative.</italic> Even if testimony of People's expert on cross-examination — that some of bloodstains on defendant's clothing appeared to have been deposited in the form of spatters — had been unresponsive, nevertheless, since it explained circumstances surrounding defendant's participation in fight in which victim was killed and was probative of defendant's assertion that he did not strike victim, it was relevant testimony and its admission cannot be the basis for a claim of prejudice in murder prosecution. 11. <italic>Unresponsive — Relevant — Admissible.</italic> There is nothing <italic>per se</italic> wrong with the admission into evidence of testimony which may be unresponsive, provided that testimony is relevant for some purpose. 12. <bold>CRIMINAL LAW</bold> — <italic>Mistrial — Discretion.</italic> A motion for a mistrial rests within the discretion of the trial court. 13. <italic>Mistrial — Denial — Error — Abuse — Prejudice.</italic> Denial of a motion for mistrial is only error where discretion of trial court is abused and prejudice results. 14. <bold>JURY</bold> — <italic>Exclusion — Opposed to Capital Punishment — Unrepresentative —</italic><italic>Issue of Guilt — Record — Devoid of Proof — Refusal to Consider.</italic> Where record was devoid of any proof — whether on the basis of judicial notice or sociological knowledge — to test validity of hypothesis that exclusion of jurors opposed to capital punishment results in an unrepresentative jury on issue of guilt or increases the risk of conviction, <italic>held</italic>, since record is devoid of such proof, reviewing court refuses to consider the issue as properly before it.

1. <bold>EXTRADITION</bold> — <italic>Executive Agreement — Another State — Return — Duties —</italic><italic>Colorado Executive — Statute.</italic> Once having exercised discretion to enter into an executive agreement with another state for return of petitioner, the power and duties of the Colorado executive were governed by the terms of the Uniform Criminal Extradition Act, C.R.S. 1963, 60-1-5. 2. <italic>Executive Agreement — Statute — Failure to Return — Fugitive —</italic><italic>Surrender — Later Date — Limitation.</italic> Where an executive agreement based on C.R.S. 1963, 60-1-5 has been made, the failure to return fugitive according to the terms of the statute limits the authority of the Governor of Colorado to make surrender at a later date. 3. <italic>California Request — More Than Eight Years — Colorado — Lack of</italic><italic>Authority — Surrender — Uniform Criminal Extradition Act — Agreement.</italic> Where record reflects that extradition request from California was filed more than eight years after petitioner's Colorado appellate proceedings were terminated, <italic>held</italic>, under such circumstances, Colorado governor, who had entered into an executive agreement with California for return of petitioner, was without authority, under the Uniform Criminal Extradition Act — as well as the agreement — to make the requested surrender and return.<page_number>Page 436</page_number>