Volume 185 — Colorado Reports

1. <bold>THEFT</bold> — <italic>Records — Public Office — Depend — Public Inspection —</italic><italic>Negative — Statute.</italic> Criminal liability for violation of statute prohibiting the purloining of records belonging to any public office within the state (1967 Perm. Supp., C.R.S. 1963, 40-7-9) does not depend upon whether the document in question was open to public inspection. 2. <bold>OFFICERS</bold> — <italic>Application — Chief Probation Officer — Material Falsities —</italic><italic>Violation — Statute — Purloining Records — Negative.</italic> Where indictment charged that defendant, a probation officer, made application for the position of Chief Probation Officer and that the application form submitted contained two material falsities, <italic>held</italic>, this, as such, did not constitute violation of statute, 1967 Perm. Supp., C.R.S. 1963, 40-7-9, "Officer purloining records — penalty"; instant statute does not make it unlawful and punishable to make false statements to public officers or agencies. 3. <bold>RECORDS</bold> — <italic>Public Agency — Falsify or Corrupts — Violation — Statute.</italic> A violation of 1967 Perm. Supp., C.R.S. 1963, 40-7-9 occurs only where a public official falsifies or otherwise corrupts a record which is in, or is<page_number>Page 15</page_number> required by law to be in, the custody or control of a public agency at the time of falsification; the statute, however, does not apply to instant situation, where, when falsified, the application for the position sought did not belong to any public office within the state.

1. <bold>SHERIFFS AND CONSTABLES</bold> — <italic>Deputy Sheriffs — Arrest — Legal Power and</italic><italic>Authority — Negative.</italic> Deputy sheriffs of the City and County of Denver do not have the general legal power and authority to make arrests for all violations of the law. 2. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>City and County of Denver — Creation — Home</italic><italic>Rule City — Constitution.</italic> Colo. Const. art. XX, which authorized the creation of the City and County of Denver as one body politic, fully enumerates the power and authority of home rule cities and towns. 3. <italic>Determination — Denver — Limits — Public Officer's Authority — All</italic><italic>Exclusive.</italic> Under Colo. Const. art. XX, the power of the City and County of Denver to determine the limits of their public officer's authority, by charter or amendment to their charter, is all exclusive. 4. <bold>SHERIFFS AND CONSTABLES</bold> — <italic>City and County of Denver — Manager of Safety</italic><italic>— Rules and Directives.</italic> There is no authority, constitutional or statutory, granting to sheriffs of the City and County of Denver the same general police powers given sheriffs and their deputies in other counties; department rules and directives of the Manager of Safety govern a deputy sheriff's duties in Denver; and since the Manager has limited their powers and duties, they have no other by operation of general state law.

1. <bold>WITNESSES</bold> — <italic>Cross-Examination — Discretion — Scope and Limit — Review.</italic> A trial judge has discretion to determine the scope and limit of cross-examination; and in the absence of an abuse of discretion, the trial judge's ruling will not be disturbed on review. 2. <italic>Cross-Examination — Beyond Scope — Discretion — Simple Robbery.</italic> In prosecution for simple robbery, trial judge did not abuse his discretion in permitting cross-examination to extend beyond scope of direct examination over objection of defendant.<page_number>Page 57</page_number>

1. <bold>CRIMINAL LAW</bold> — <italic>Charge — Unknown — Interrogating Officer — Accused —</italic><italic>Knowledge — Crime — Sufficient.</italic> The interrogating officer may not know the exact charge when the interrogation occurs prior to the formal complaint; nevertheless, it is sufficient if the accused knows the general nature of the crime involved. 2. <italic>Informed — Vehicular Homicide — Death — Investigation — Warning —</italic><italic>Proper.</italic> Where defendant was informed prior to his giving his first statement that he was under investigation concerning the "vehicular homicide" and was additionally advised prior to his giving his second statement that his activities concerning death of victim at specific address were being investigated, <italic>held</italic>, under the circumstances, defendant was properly warned even though he was not told he was under arrest for murder. 3. <bold>CRIMINAL PROCEDURE</bold> — <italic>Magistrate — Afternoon Following Evening of Arrest</italic><italic>— Without Undue Delay — Rules.</italic> Where defendant was taken before the judge on the afternoon, following the evening of his arrest, <italic>held</italic>, as such, this was not an unreasonable delay within the purview of Crim. P. 5, requiring that the accused be taken before the magistrate without undue delay. 4. <italic>Magistrate — Without Undue Delay — Rule — Purpose.</italic> The purpose of the rule requiring that the accused be taken before the magistrate without undue delay is to insure that the defendant is adequately informed of his rights. 5. <italic>Magistrate — Claimed Delay — Negative — Advisements — Twice.</italic> Where investigating officer twice gave defendant all advisements required before he made any statement, <italic>held</italic>, under the circumstances, defendant was not prejudiced by claimed delay in taking him before magistrate. 6. <bold>WITNESSES</bold> — <italic>Impeachment — Prior Felony Conviction — Denial of Equal</italic><italic>Protection — Negative.</italic> Where trial judge permitted impeachment of defendant's testimony by a prior felony conviction which was committed more than five years prior to his court testimony in instant case, <italic>held</italic>, as<page_number>Page 59</page_number> such, this was not a denial of equal protection of the laws. 7. <bold>CRIMINAL EVIDENCE</bold> — <italic>Admissibility — Disturb — Review — Negative —</italic><italic>Exception — Abuse.</italic> Unless there is an abuse of discretion, trial court's decision as to admissibility of evidence will not be disturbed on review. 8. <italic>Photograph — Colored — Deceased — Before Death — Motor Vehicle —</italic><italic>Proper.</italic> In homicide prosecution, no abuse of discretion was shown in admitting in evidence large colored photograph of deceased taken a short time before he was struck and killed by a motor vehicle. 9. <bold>HOMICIDE</bold> — <italic>First-Degree Murder — Vehicle — Aimed at Victim — Failed to</italic><italic>Apply Brakes — Express Malice.</italic> In prosecution for first-degree murder, where evidence was strongly indicative of fact that defendant aimed vehicle at victim and struck him and did not apply brakes or stop immediately after hitting victim, <italic>held</italic>, under these circumstances, the evidence was sufficient to show express malice and support the jury's guilty verdict. 10. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Intoxication — Effect — Specific Intent —</italic><italic>Judicially Approved.</italic> In homicide prosecution wherein trial court gave same instruction — as to intoxication and its effect on specific intent — as had been previously judicially approved, declining to give defendant's tendered instruction regarding intoxication was not error. 11. <italic>Arguments — Appeal — Failure to Object — Absent Plain Error —</italic><italic>Review — Negative.</italic> Absent plain error, reviewing court would not consider on appeal arguments concerning jury instructions, where no specific objection was made prior to their submission to jury as required by Crim P. 30. 12. <italic>Whole.</italic> Instructions should be considered as a whole. 13. <bold>HOMICIDE</bold> — <italic>Argument — Attempted Robbery — Felony Murder — Failure to</italic><italic>Object — Not Alleged as Error.</italic> In homicide prosecution, argument of<page_number>Page 60</page_number> defendant — that district attorney erroneously introduced evidence of possible attempted robbery of victim by defendant when there was insufficient evidence to support such a conviction and defendant was not charged with felony murder — would not be considered for the first time on appeal where no objection was made to this testimony, nor was it alleged as error in defendant's motion for new trial. 14. <bold>JURY</bold> — <italic>Death Qualified — Deprived — Fair Trial — Lack of Merit.</italic> Argument of defendant — that a death qualified jury is conviction prone and thus deprives an accused of a fair trial in violation of the Fourteenth Amendment to the United States Constitution — is without merit.

1. <bold>CRIMINAL LAW</bold> — <italic>Presence of Defendant — Necessary — Proceeding —</italic><italic>Critical Stage.</italic> A defendant must be present at every critical stage of the proceeding in a criminal prosecution. 2. <bold>CRIMINAL PROCEDURE</bold> — <italic>Preliminary Hearing — Screening Device —</italic><italic>Opportunity — Defendant — Challenge — Evidence.</italic> The Colorado Rules of Criminal Procedure relating to a preliminary hearing (Crim. P. 5 and Crim. P. 7) were intended to create a preliminary screening device to afford a defendant an opportunity, at an early stage of the criminal proceedings, to challenge the sufficiency of the prosecution's evidence before an impartial judge. 3. <italic>Preliminary Hearing — Mandatory — Negative.</italic> The preliminary hearing is not intended to be a mandatory procedural step in every criminal prosecution. 4. <italic>Preliminary Hearing — Failure to Request — Waiver.</italic> If a defendant does not request a preliminary hearing, he is deemed to have waived the preliminary hearing and must be bound over for trial.<page_number>Page 119</page_number> 5. <italic>Preliminary Hearing — Request — Waiver — Admission — Probable</italic><italic>Cause — Crime.</italic> A defendant who requests a preliminary hearing and then affirmatively waives the hearing is presumed to have admitted, at the preliminary hearing stage, that probable cause exists to believe that he committed the crime charged. 6. <italic>Preliminary Hearing — Request — Duty to Appear.</italic> When a defendant requests a preliminary hearing, he has not only the constitutional right to be present, but is under an affirmative obligation and duty to appear at the hearing. 7. <italic>Preliminary Hearing — Presence — Discretion — Court — Justice.</italic> When the defendant is present at the preliminary hearing, the court, in its discretion, can determine the procedures which should be followed to insure that justice is done. 8. <italic>Preliminary Hearing — Request — Waiver of Presence — Refusal — Ploy</italic><italic>— Intolerable.</italic> The court may, when a timely request is made, permit the defendant to waive his presence at the preliminary hearing, if the ends of justice would not be frustrated, but the tactical ploy of refusing to produce a defendant at the preliminary hearing to frustrate the identification phase of the prosecution's case should not be tolerated. 9. <italic>Preliminary Hearing — Failure to Appear — Waiver — Implied —</italic><italic>Extinguish — County Court — Probable Cause — Restored — Negative.</italic> Where judge of county court advised counsel that failure of defendant to appear at preliminary hearing would constitute a waiver, defendant's subsequent refusal to appear not only constituted an implied waiver so as to extinguish his right to a preliminary hearing in the county court, but operated as an admission that there was sufficient evidence to establish probable cause to believe that he committed the crime charged; moreover, once defendant knowingly waived his right to a preliminary hearing in the county court, the right was extinguished and could not be restored in subsequent district court proceedings. 10. <italic>Preliminary Hearing — Extinguished — Grant — Motion — District</italic><italic>Judge — Improper.</italic> District court did not have the power or authority under the Colorado Rules of Criminal Procedure to grant the defendant a preliminary hearing once his right to such a hearing had been extinguished in county court proceedings; accordingly, district judge exceeded the district court's jurisdiction in granting defendant's motion for a preliminary hearing.<page_number>Page 120</page_number>

1. <bold>EVIDENCE</bold> — <italic>Expert Testimony — Ruling of Court — Admissibility —</italic><italic>Conclusive.</italic> Generally, the trial court's ruling on the admissibility of expert testimony is conclusive; but if it is shown that the trial court's ruling is clearly erroneous and results in the exclusion of competent and relevant evidence from the trial, reversal is required. 2. <bold>WITNESSES</bold> — <italic>Contractor — Voids — Housing Foundation — Technique —</italic><italic>Understood — Exclusion — Damages — Prejudice — Reversal.</italic> Where it was<page_number>Page 124</page_number> established that although contractor had never personally installed voids in a housing foundation, but that he had nevertheless had knowledge of and fully understood both technique of placing voids and costs of performing such work, and where offer of proof firmly established that contractor's testimony was not only relevant, but essential to homeowners' case in order to show amount of damages they actually suffered, <italic>held</italic>, under these circumstances, trial court's exclusion of contractor's expert testimony was clearly erroneous resulting in prejudice to homeowners' case, and accordingly requires reversal.

1. <bold>JURY</bold> — <italic>Waiver — Voluntary — Evidence — Prosecution — Aggravated</italic><italic>Robbery.</italic> In prosecution for aggravated robbery, where record reflects that trial judge orally advised defendant of his right to a jury, that defendant read and signed a written waiver and failed to give any indication to the court that his waiver was not voluntary, <italic>held</italic>, under the circumstances, there is substantial evidence to support the findings that the waiver was voluntary. 2. <bold>CRIMINAL LAW</bold> — <italic>In-Court Identification — Inquiry — Validity — Lineup —</italic><italic>Source — Separate — Error — Negative.</italic> Although it may be procedurally improper for a trial court to admit an <italic>in-court</italic> identification without first making an inquiry into the validity of the lineup, this, however, does not constitute reversible error where the testimony in court establishes a source for identification separate and apart from the lineup. 3. <italic>Identification — During Progress of Crime — Independent Source —</italic><italic>Lineup — Failure to Hold — Evidentiary Hearing — Harmless Error.</italic> In prosecution for aggravated robbery, where record demonstrates that witnesses identified defendant at trial on basis of close face-to-face confrontation with him during progress of crime and defendant did not contend otherwise nor did he rely seriously on misidentification as a defense, and where trial court established a strong independent source for the identifications apart from the lineup, <italic>held</italic>, under these circumstances, failure to hold a separate evidentiary hearing was at most harmless error.<page_number>Page 215</page_number> 4. <bold>CRIMINAL EVIDENCE</bold> — <italic>Other Offenses — Inadmissible — Plan — Scheme —</italic><italic>Design — Admissible.</italic> Although evidence which shows that the defendant committed other offenses is generally not admissible, nevertheless, evidence of other transactions is admissible to show plan, scheme, or design. 5. <italic>Plan — Scheme — Design — Involvement — Two Other Robberies —</italic><italic>Admissible.</italic> Where record reflects evidence of defendant's involvement in two other robberies which occurred on the day following the robbery for which defendant was being tried, <italic>held</italic>, as such, this evidence was admissible for the limited purpose of showing plan, scheme, or design, especially, where all the robberies were committed in a similar way to the one charged and were related in time. 6. <bold>CRIMINAL LAW</bold> — <italic>Appeal and Error — Issue — Failure to Raise — Review —</italic><italic>Negative.</italic> An issue that was not raised in either the Crim P. 35(b) motion or at the hearing is not properly before the Supreme Court for review. 7. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — Aggravated Robbery — Boykin v.</italic><italic>Alabama — Compliance.</italic> Where guilty plea to charge of aggravated robbery was entered on January 9, 1968, more than two years prior to United States Supreme Court decision in <italic>Boykin v. Alabama</italic> which sets forth standards that must be complied with by a trial court before it can accept a guilty plea, <italic>held</italic>, under these circumstances, the guilty plea adequately complied with pre<italic>Boykin</italic> requirements that it be made voluntarily with a full understanding of the charge.

1. <bold>PLEADING</bold> — <italic>Issue — Tried — Lack of Timely Objection — Properly Before</italic><italic>Court — Rules.</italic> Under C.R.C.P. 15(b), when an issue is tried before the<page_number>Page 253</page_number> court without timely objection or motion, then the issue is deemed properly before the court despite failure to raise it in the pleadings. 2. <bold>INSURANCE</bold> — <italic>Exclusions — Surface and Flood Water — Issue — Lack of</italic><italic>Objection — Consent of Insured — Applicability — Before Court.</italic> Where even though insurer's answer was never formally amended to include any policy exclusion, counsel did raise the issue in his opening statement and repeated the basis of insurer's defense at the end of his opening statement, and where record is barren of any objection by insured to the placing of any policy exclusion at issue but rather affirmatively shows that insured consented, albeit impliedly, to litigate the issue, and the sole thrust of counsel's closing argument was directed to his position that no exclusion defeated coverage, <italic>held</italic>, under these circumstances, the issue of the applicability of the surface and flood water exclusions were properly placed before the court.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — Elements — Charge — Waiver —</italic><italic>Trial — Knowledge.</italic> Although no precise ritualistic procedure need be followed by the trial judge presented with a guilty plea, nevertheless, it remains necessary to establish that defendant knows the elements of the charge, and thus voluntarily waives his right to trial by pleading guilty. 2. <italic>Hearing — Knowledge — Elements — Developed — Testimony — Attorney.</italic> With regard to the voluntariness of the guilty plea, defendant's knowledge of the elements of the crime may be developed in the Crim. P. 35(b) hearing; and defendant's attorney for the prior hearing and sentencing may testify in the 35(b) hearing that defendant knew and understood all the elements of the crime charged. 3. <italic>Plea of Guilty — Valid — Understand — Elements — Crime.</italic> A guilty plea cannot be valid unless the defendant understands the elements of the crime with which he is charged; and the record must clearly show the defendant's knowledge. 4. <italic>Plea of Guilty — Judge — Determine — Understanding — Nature of</italic><italic>Charge — Before Acceptance.</italic> Crim. P. 11 requires the trial judge to determine that the defendant understands the nature of the charge before accepting a plea of guilty. 5. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Plea of Guilty — Unlawful Possession — Narcotic —</italic><italic>Small Amount — More Than One-Half Ounce — Marijuana — Vacated.</italic> Where defendant asserted that his guilty plea to the felony charge of unlawful possession of a narcotic drug was invalid because he did not realize he was<page_number>Page 318</page_number> pleading guilty to possession in connection with the sale he witnessed between his codefendant and undercover agents and now argues that he thought he was pleading guilty to possession of a small amount of marijuana he kept at his home and turned over to officers after the sale, and that he would not have pleaded guilty if he had known that the possession of more than one-half ounce of marijuana was required to constitute the felony to which he pleaded guilty, <italic>held</italic>, under these circumstances, the plea of guilty must be vacated. 6. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea Bargaining — Guilty Plea — Vacated — Dropped</italic><italic>Charges — Reinstated.</italic> Where plea bargaining was involved and it was subsequently found necessary that the plea of guilty be vacated, <italic>held</italic>, under such circumstances, the charges dropped as a result of the plea bargaining could be reinstated.

1. <bold>CRIMINAL PROCEDURE</bold> — <italic>Plea of Guilty — Sentence — Vacated — Assault to</italic><italic>Rob — Understood — Elements — Negative.</italic> Where trial court did not determine that defendant understood the nature and elements of assault to rob charge — to which defendant had entered a plea of guilty — the judgment and sentence must therefore be vacated. 2. <italic>Plea of Guilty — Valid — Understand — Crime — Nature and Elements.</italic> No guilty plea can be deemed valid unless the defendant understands the nature and elements of the crime with which he stands charged. 3. <italic>Plea of Guilty — Determination — Understand — Charge.</italic> Crim. P. 11 mandates that the court shall not accept a plea of guilty without first determining that the defendant understands the charge; and the mere assertion of understanding by the defendant does not satisfy either the letter or spirit of the rule; it must be clear, in fact, that the defendant understands the elements of the charge.

1. <bold>HOMICIDE</bold> — <italic>Evidence — Sustain — First-Degree Murder — Perforce —</italic><italic>Finding — Second Degree.</italic> Evidence which when viewed in its most favorable light would sustain a verdict of first-degree murder must perforce sustain a finding of second-degree murder. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Viewed — Favorable — Verdict — Jury — Presumed —</italic><italic>Adopted.</italic> Evidence must be viewed in the light most favorable to the jury's verdict. 3. <bold>JURY</bold> — <italic>Presumption — Adopt — Evidence — Support — Verdict.</italic> Jury is presumed to have adopted that evidence which supports its verdict. 4. <bold>HOMICIDE</bold> — <italic>Second-Degree Murder — Proof — Premeditation — Negative —</italic><italic>Malice.</italic> Second-degree murder does not require proof of premeditation, but does require proof of malice. 5. <italic>Jury — Evaluate — First or Second-Degree Murder.</italic> Assuming the sufficiency of the evidence to support first-degree murder — it is strictly<page_number>Page 446</page_number> within the province of the jury to evaluate the evidence and say by its verdict whether the evidence justifies a verdict of first or second-degree murder. 6. <italic>Evidence — Support — First Degree — Insufficient — Second Degree —</italic><italic>Illogical.</italic> It is illogical to say that the evidence is sufficient to support a conviction of first-degree murder but insufficient to support the lesser included offense of second-degree murder. 7. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Self-Defense — Failure to Tender — Lack of</italic><italic>Evidence.</italic> Where record discloses that defendant did not tender nor request the giving of an instruction on self-defense, nor did he assign the court's failure to give the instruction as a ground for new trial and there is no evidence to support the giving of such an instruction, <italic>held</italic>, under these circumstances, assertion that the court erred in failing to instruct the jury on the issue of self-defense is without merit. 8. <italic>Trial — One Theory — Claim Error — Appeal — Negative.</italic> Defendant cannot try a case on one theory and claim error on appeal where the trial court, in instructing the jury, acquiesced in that theory. 9. <bold>WITNESSES</bold> — <italic>"Knife Wielder" — Testimony — Refusal — Proper — Lack of</italic><italic>Foundation.</italic> In homicide prosecution, trial court acted properly in refusing to allow defense counsel to offer testimony to show witness' reputation in the community as "a knife wielder" inasmuch as no foundation had been laid for impeachment. 10. <bold>CRIMINAL PROCEDURE</bold> — <italic>Mistrial — Granting or Denial — Discretion of</italic><italic>Court.</italic> The granting or denial of a motion for mistrial lies within the sound discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear showing of abuse of its discretion. 11. <bold>HOMICIDE</bold> — <italic>"Saturday-Night Special" — Use — District Attorney —</italic><italic>Cross-Examination — Non-Prejudicial.</italic> Single reference by district attorney — on cross-examination of defendant — to weapon used in killing as a "Saturday-night special" although not proper was nevertheless not so prejudicial to defendant as to require a mistrial.