Volume 189 — Colorado Reports

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Fourth Amendment — Protection — All Persons.</italic> Although the Fourth Amendment offers protection against unreasonable searches and seizures to all persons, nevertheless, what may be a reasonable search when a parolee is the subject of the investigation may be unreasonable when directed against another person. 2. <bold>PARDON AND PAROLE</bold> — <italic>Parolees — Greater Threat — Law Enforcement</italic><italic>Authorities.</italic> Parolees, as a class, pose a greater threat of criminal activity to law enforcement authorities than ordinary citizens. 3. <italic>Authorities — Power — Enforce — Conditions.</italic> Parole authorities must have the power to enforce parole conditions. 4. <bold>SEARCHES AND SEIZURES</bold> — <italic>Status — Ignore — Fourth Amendment —</italic><italic>Prohibited.</italic> The Fourth Amendment is not to be totally ignored merely because of parole status. 5. <bold>PARDON AND PAROLE</bold> — <italic>Officer — Investigation — Violation — Grounds —</italic><italic>Search — Warrant — Elimination.</italic> A parole officer who is investigating a parole violation must have reasonable grounds to believe that a parole violation has occurred; therefore, when he conducts his search in connection with that investigation the need for a search warrant is eliminated. 6. <italic>Protection — Parolee — Reasonable Search.</italic> The measure of protection afforded to a parolee lies in a determination of what constitutes a reasonable search under the circumstances. 7. <italic>Authority — Power to Investigate — Ascertain — Violation.</italic> The parole authority must be vested with the power to investigate a parolee to ascertain whether a parole violation has occurred if it is to fulfill its statutory function. 8. <italic>Access — Material — Violation — Authorities — Supervisory —</italic><italic>Enforcing.</italic> Without access to evidentiary material relating to a parole violation, the parole authorities would be prevented from supervising parolees and from enforcing parole conditions. 9. <italic>Entry and Search — Defendant's Apartment — Officer — Reasonable.</italic> Where defendant's wife told parole officer that defendant lived in the apartment, and officer knew that defendant had reported a different address to parole board, and where manager of apartment had given rent receipts to defendant and knew that defendant was living there, <italic>held</italic>, under these circumstances, entry and search of defendant's apartment by his parole<page_number>Page 35</page_number> officer was reasonable. 10. <bold>SEARCHES AND SEIZURES</bold> — <italic>Parole Officer — Tags — Seizure — Television</italic><italic>— Compliance — Fourth Amendment.</italic> Seizure of merchandise tags by parole officer and subsequent seizure of stolen television set was not proscribed by Fourth Amendment, since seizure of tags was within scope of a reasonable search and since subsequent seizure of television set, pursuant to search warrant predicated on the tags, complied with Fourth Amendment requirements. 11. <bold>PARDON AND PAROLE</bold> — <italic>Justify — Search — Warrantless — Any Other</italic><italic>Officer — — Police Officer — Accompany — Parole Officer.</italic> The fact that a person is on parole does not justify a search without a warrant by any law enforcement officer, other than a parole officer; a parole officer, however, may cause a police officer to accompany him when a search is being made. 12. <italic>Police Officer — Broad Power — Parolees — Negative.</italic> A police officer does not have the broad power to supervise parolees that is granted to parole officers. 13. <italic>Evidence — Parole Officer — Unrelated — Admissible — Another Crime.</italic> Evidence seized within the scope of a reasonable search by a parole officer, even though unrelated to the parole violation, is admissible in the prosecution of another crime. 14. <bold>CRIMINAL EVIDENCE</bold> — <italic>Admission — Parole Officer — Television — Stolen —</italic><italic>Miranda Statement — Admissible.</italic> Defendant's admission to his parole officer that he knew that the television set in his apartment was stolen was not the product of an unwarranted promise and was not deprived of its voluntary character by statements of the parole officer that it would go better for him if he told the truth; furthermore, the statement does not qualify as fruit of the poisonous tree and cannot be connected to an unlawful search and seizure; defendant was given his <italic>Miranda</italic> warnings and after being fully advised of his rights he expressed a desire to talk with his parole officer, and having admitted that his statement was voluntarily made it was therefore admissible at trial.

1. <bold>EXTRADITION</bold> — <italic>Indictment — Armed Robbery — Texas Statute — Charge —</italic><italic>Clear — Lack of Citation — Demand — Sufficient.</italic> Where indictment clearly charged fugitive with armed robbery under Texas statute in readily understandable language which could not mislead or fail to give adequate notice of crime for which demand for extradition was made, <italic>held</italic>, even though indictment failed to mention statutory citation, this, as such, did not render such demand fatally insufficient. 2. <italic>Indictment — Technical Sufficiency — Court of Demanding State —</italic><italic>Determination.</italic> Technical sufficiency of indictment in extradition proceeding is for the court of the demanding state to determine and not for the court of the asylum state. 3. <italic>Documents — Notice — Crime Charged — Fugitive — Asylum — Negative.</italic> Supreme Court will not so narrowly interpret the extradition statute as to afford a fugitive asylum in this state when the extradition documents abundantly give notice of the crime charged in the demanding state. 4. <italic>Misdesignation — Judicial District — Clerical Error — Avoid —</italic><italic>Negative.</italic> Misdesignation of judicial district — assuming <italic>arguendo</italic> that difference in designation of judicial district appearing in Texas grand jury indictment was a misdesignation — was no more than a clerical error, and would not justify avoiding extradition documents. 5. <bold>HABEAS CORPUS</bold> — <italic>Petitioner — Burden — Inconsistency — Designation of</italic><italic>Court — Failure.</italic> Habeas corpus petitioner challenging extradition proceedings had the burden to sustain his contention that the assumed inconsistency in designation of court of demanding state rendered extradition documents spurious; and record reflects that petitioner has failed to meet his burden. 6. <bold>EXTRADITION</bold> — <italic>Name — Custody — Identical — Documents — Identity —</italic><italic>Presumed — Failure to Overcome.</italic> Where name of person in custody was identical to that appearing in extradition documents — as was found in instant case — there was a prima facie showing of identity and burden was on petitioner to disprove the presumed identity; and since petitioner presented no evidence to overcome such presumption of identity, trial court was correct in finding that petitioner was the person sought by the demanding state.<page_number>Page 41</page_number>

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Jury — Instructed — Arguments of Counsel — Not</italic><italic>Evidence — Improper Statements — Error — Negative.</italic> Where jury was fully instructed — and even was reminded by the district attorney in closing argument — that arguments of counsel are not evidence, <italic>held</italic>, under such circumstances, inaccurate or improper statements made by prosecutor during closing argument, though ill-advised, were not sufficiently material or misleading to constitute reversible error. 2. <bold>JURY</bold> — <italic>Heed — Instruction — Arguments of Counsel — Not Evidence —</italic><italic>Presumed</italic>. It is presumed, absent a clear showing to the contrary, that the jury understood and heeded the instruction that arguments of counsel are not evidence. 3. <bold>TRIAL</bold> — <italic>Final Argument — Discretion — Trial Court</italic>. It is fundamental in Colorado that the scope of final argument rests in the sound discretion of the trial court.<page_number>Page 53</page_number> 4. <bold>CRIMINAL LAW</bold> — <italic>Counsel — Effectiveness — Test — Negative.</italic> The fact that the result desired by the defendant was not reached is not the test of the effectiveness of counsel. 5. <italic>Counsel — Effective Assistance — Deprivation — Contention — Record —</italic><italic>— Contrary</italic>. Although defendant contended that he was deprived of effective assistance of counsel in that defense counsel made no attempts at discovery and failed to present the alibi defense competently to the jury, nevertheless, record did not disclose any flagrant shortcomings from which court could conclude that defense counsel was guilty of palpable malfeasance or that representation received was so inadequate as to constitute a farce, mockery or sham.

1. <bold>INSURANCE</bold> — <italic>Ambiguous — Construe — Against Insurer — Court — Create —</italic><italic>Ambiguity — Prohibited</italic>. Although an ambiguous insurance policy must be construed most strongly against the insurer, court cannot create an ambiguity where none exists. 2. <italic>Fire — Report — Monthly Values — Separately — Limit — Where Loss</italic><italic>Occurs — Failure to Report — Partial Recovery — Contract — Unambiguous</italic>. Where fire insurance policy clearly stated that insured must report monthly values <italic>separately for each premises</italic>, and where, in addition, honesty clause in policy stated in plain language that insurer was limited by values reported for the premises <italic>where the loss occurs</italic> when compared to actual values <italic>at that location</italic>, and where specific premises reporting was a condition of full coverage under the policy, <italic>held</italic>, since paint company breached this latter condition, it was limited to partial recovery of its loss under the unambiguous terms of the insurance contract.

1. <bold>PARDON AND PAROLE</bold> — <italic>Parolee — Restrictions</italic>. A parolee is subject to restrictions which are not applicable to other citizens. 2. <bold>CRIMINAL PROCEDURE</bold> — <italic>Lapse of Time — Postconviction Relief — Bar —</italic><italic>Negative</italic>. The mere lapse of time is not a bar to postconviction relief. 3. <italic>Postconviction Collateral Attack — Conviction — Murder — Barred —</italic><italic>Laches — Negative</italic>. Postconviction collateral attack upon 1963 conviction of murder was not barred by laches despite fact that after motion was denied and appeal lodged governor commuted defendant's sentence and defendant was thereafter released on parole, since defendant still had several years remaining on his sentence of 25 years to life, and since his release on parole in no way altered the fact that he was still under sentence, that he was in technical custody, and that he was under supervision. 4. <bold>JUDGES</bold> — <italic>Determination — Admissibility — Confession — Objection —</italic><italic>Involuntary</italic>. The trial judge, and not the jury, determines the admissibility of a confession where objection is made on the ground that the confession was involuntarily made. 5. <bold>CRIMINAL LAW</bold> — <italic>Voluntariness — Confessions — Determination — In</italic><italic>Camera Hearing</italic>. A defendant is entitled to have a "fair and reliable determination" by the trial judge at an <italic>in camera</italic> hearing on the issue of voluntariness of statements and confessions at some stage in the proceedings. 6. <italic>Voluntariness — Confession — Submission to Jury — Without Prior</italic><italic>Determination — Error</italic>. The submission to the jury of the issue of voluntariness of defendant's confession, without a prior determination by the trial judge as to voluntariness, was error of constitutional proportions.<page_number>Page 182</page_number> 7. <italic>Voluntariness — Failure to Rule — Corrected</italic>. Failure of trial court to rule on voluntariness of defendant's statements and confession — which was error of constitutional dimension — may be corrected without the necessity of a new trial. 8. <italic>Remand — Voluntariness Issue — Hearing — Evidence — Resolution —</italic><italic>Findings</italic>. Upon remand of case in which trial court improperly failed to rule on voluntariness of defendant's statements and confession, court should first conduct hearing on voluntariness issue; in addition to testimony previously presented at trial and transcribed, at such hearing prosecution and defense should be given opportunity to present other evidence relevant to voluntariness issue, which issue should then be resolved based upon proper findings of fact. 9. <italic>Voluntariness — Not Voluntary — No Proper Warnings — Vacated —</italic><italic>Voluntary — Full Transcript</italic>. If trial court, on remand for purpose of obtaining a ruling on voluntariness of defendant's statements and confession, finds that these were not voluntary or that proper warnings and advice were not given defendant before he made such statements and confession, judgment should be vacated and a new trial ordered; however, if trial court finds that statements and confession were voluntary and that proper warnings were given, then trial court should grant request for full transcript of trial proceedings.

1. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Narcotic Act — Marijuana — Constitutional — House</italic><italic>Bill — Subsequent Conduct — Moot</italic>. Until House Bill No. 1027 — which removed cannabis from the Narcotic Drug Act and designated it as a dangerous substance — became effective in July 1975, the narcotic act embracing marijuana was constitutional; on such effective date the question became moot as to subsequent conduct. 2. <bold>DISCOVERY</bold> — <italic>Criminal — Oral Statements — Police Officers — Lack of</italic><italic>Prejudice — Damnum Absque Injuria</italic>. Question of compliance by prosecutor with Crim. P. 16 — pertaining to giving defendant in advance a complete exposition of the oral statements of defendant to which police officers would testify at trial — not reached because defendant was given fair notice of nature of testimony to be produced and no prejudice was shown; and even if there was no meticulous compliance with discovery order, such violation was <italic>damnum absque injuria</italic>. 3. <bold>TRIAL</bold> — <italic>Mistrial — Negative — Testimony — Police Officer — Street</italic><italic>People — Hippies — Deserters</italic>. Testimony by police officer — describing the nine people in the living room at the time of the search as street people or hippies, except that two were marine corps deserters — was not prejudicial; and trial court did not abuse its discretion in overruling defendant's motions for mistrial. 4. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Statute — Sale With Intent to Induce — Aimed at</italic><italic>Pushers</italic>. Statute (section <cross_reference>12-22-322</cross_reference>, C.R.S. 1973) under which defendant was charged in the first count, prohibiting possession for sale of a narcotic drug with intent to induce or aid another unlawfully to use and possess it, was designed to relate to "pushers" of narcotic drugs. 5. <italic>Marijuana — Small Quantity — Induce — Use or Sell — Negative</italic>. Relatively small quantity of marijuana seized (7.9 ounces) in and of itself, does not support conclusion that defendant intended to induce the use of said drug or even to sell it. 6. <italic>Marijuana — Small Quantity — Possession — Conviction — Proper</italic>. Although seizure of relatively small quantity of marijuana (7.9 ounces) from defendant's apartment would not — standing by itself — warrant<page_number>Page 213</page_number> conviction of possession for sale of a narcotic drug with intent to induce and aid another unlawfully to use and possess it, nevertheless, such amount would support conviction of possession of a narcotic drug. 7. <italic>Amphetamine — Living Room — Connection — Link — Possession —</italic><italic>Defendant — Negative — Acquittal — Proper</italic>. Where record reflects that amphetamine was found in living room at time it was occupied by some nine people, and there is nothing to link its possession to the defendant, <italic>held</italic>, under such circumstances, defendant was entitled to a judgment of acquittal in connection with charge of possession of a dangerous drug.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Warrant — Role of Officer — Furnish —</italic><italic>Magistrate — Facts — Determine — Probable Cause</italic>. The role of the law enforcement officer in the search warrant procedure includes furnishing the magistrate with accurate facts and trustworthy information for purposes of enabling the magistrate to determine whether probable cause exists. 2. <italic>Probable Cause — Warrant — Statements — Affidavit — Challenged —</italic><italic>Court — Determination — Trustworthy</italic>. After magistrate has made determination that probable cause exists and has issued a search warrant, it is within the competence of the trial court, when the truth of the statements in the affidavit are challenged by a motion to suppress, to ascertain whether the information and statements in the affidavit are in fact trustworthy and correct. 3. <bold>CRIMINAL LAW</bold> — <italic>Findings — Binding — Supreme Court — Evidence</italic>. Lower court's findings of fact are binding on Supreme Court when supported by competent evidence. 4. <bold>SEARCHES AND SEIZURES</bold> — <italic>Affidavit — Contradictory — Statements —</italic><italic>Findings — Binding — Supreme Court — Informant — Lack of Knowledge —</italic><italic>Address — Home</italic>. Although trial court, in proceeding on motion to suppress evidence seized from house pursuant to search warrant, was confronted with contradictory testimony bearing on several statements contained in affidavit, nevertheless, its findings — that informant, who had assertedly<page_number>Page 243</page_number> bought marijuana from one of defendants, did not know address of defendants' residence or specifically identify a particular house as being the home of the defendants — are binding on the Supreme Court. 5. <bold>CRIMINAL LAW</bold> — <italic>Appeal — Supreme Court — Accept — Determination — Trial</italic><italic>Court — Best Suited — Evaluate Credibility — Affidavit — Contradictions</italic>. Supreme Court was required, on appeal, to accept determination of trial court — which suppressed evidence seized as result of search conducted pursuant to search warrant — that affiant officer did not sincerely believe the contradicted statements contained in the affidavit, particularly, since trial court, as the trier of fact, was best suited to evaluate credibility. 6. <bold>SEARCHES AND SEIZURES</bold> — <italic>Affidavit — Warrant — Statement — False —</italic><italic>Stricken — Lack of Consideration — Determination — Issuance</italic>. Any statement included in an affidavit for a search warrant known to the affiant to be false, inaccurate or misleading must be stricken and cannot be considered in determining whether the substance of the affidavit justified the issuance of a search warrant. 7. <italic>Affidavit — Informant — Lack of Knowledge — Address — Lack of</italic><italic>Identity — Lack of Probable Cause — Warrant</italic>. Affidavit — with reference to which trial court found that informant did not know address of defendants' residence, that he did not specifically identify particular house as being the home of defendants, and that he did not witness the presence of an additional quantity of contraband — did not state probable cause for issuance of a warrant for search of house.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Crime — Independent — Offense — Inadmissible</italic>. The general rule is that evidence is not admissible which shows, or tends to show, that the accused committed a crime wholly independent of the offense for which he is on trial. 2. <bold>TRIAL</bold> — <italic>Only For Offense Charged</italic>. A defendant should be tried only for the offense with which he is charged. 3. <bold>CRIMINAL EVIDENCE</bold> — <italic>Scheme — Plan — Intent — Design — Other Activity —</italic><italic>Admissible — Limited</italic>. Where evidence of other criminal activity tends to show scheme, plan, intent, or design, the evidence of such other criminal activity will be admitted at the trial of the immediate offense but only for that limited purpose; and in such cases, the trial judge is required to instruct the jury on the limited purpose for which such evidence of other criminal acts is admitted. 4. <italic>Conversations and Transactions — Other Crimes — Extended — Plan —</italic><italic>Scheme — Design — Admissible</italic>. Where evidence of conversations and transactions between defendant and undercover agent — far from being wholly independent of the crime charged — extended over a period of months and were "an integral part and parcel of the total picture" which surrounded the final drug transaction on April 23, 1973, thus tending to show a continuing plan, scheme, design, and intent on part of coconspirators,<italic>held</italic>, under these circumstances, testimony of the facts of which defendant complains, being directly connected to the chain of events leading to the<page_number>Page 339</page_number> act charged in the information, were admissible even though such testimony which outlines the criminal transaction includes the commission of other crimes. 5. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Other Crimes — Limiting Use of Testimony —</italic><italic>Duty of Judge — Negative — Chain of Events — Connected</italic>. Trial judge was not under a duty, <italic>sua sponte</italic>, to give instruction limiting use of testimony indicating commission of crimes other than those with which defendant was charged after testimony was properly offered and received in evidence indicating facts directly connected to chain of events leading to act charged in the information. 6. <bold>CRIMINAL EVIDENCE</bold> — <italic>Conversations and Transactions — Admissible —</italic><italic>Contention of Remoteness — Without Merit</italic>. Where trial judge allowed testimony of conversations and transactions between defendant and undercover agent and between coconspirator and same undercover agent over time period extending from January 1973 until defendant's arrest on April 25, 1973, <italic>held</italic>, as such, trial judge did not abuse his discretion, notwithstanding defendant's contention that these conversations and transactions were too remote in time to have any probative value as to the offense committed on April 25, 1973.

1. <bold>HARASSMENT</bold> — <italic>Subsection — Facially Overbroad — Unconstitutional</italic>. Subsection (1)(e) of section <cross_reference>18-9-111</cross_reference>, C.R.S. 1973 — which states that a person commits harassment if, with intent to harass, annoy, or alarm another person, communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of communication, in a manner likely to harass or cause alarm — is facially overbroad and therefore unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article II, section 10 of the Colorado Constitution. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>First Amendment Protections — Overbreadth —</italic><italic>Exception to General Rule</italic>. In dealing with First Amendment protections, statutory challenge of facial overbreadth should be entertained as an exception to the general rule that a person to whom a statute may constitutionally be applied may not be heard to challenge the statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court.<page_number>Page 395</page_number> 3. <italic>First Amendment — Facially Overbroad</italic>. In the First Amendment area, a statute is facially overbroad if it sweeps so broadly as to substantially include within its proscriptions constitutionally protected speech. 4. <italic>First Amendment Protection — Statute — Proscribe — Unprotected</italic><italic>Activity</italic>. A statute intended to proscribe unprotected activity must not also proscribe activity protected under the First Amendment. 5. <italic>First Amendment Area — Statute — Narrowly Drawn</italic>. In the First Amendment area, a statute must be narrowly drawn to implement legitimate and constitutional legislative purposes. 6. <italic>First Amendment — Citizens — Protection — Robust Debate</italic>. As citizens, living under the beneficent protection of the First Amendment, we are entitled to robust debate in a free marketplace of ideas; hence, if unsettling, disturbing, arousing, or annoying communications could be proscribed, or if they could only be conveyed in a manner that would not alarm, the protection of the First Amendment would be a mere shadow indeed. 7. <italic>Construction — Statute — Reduce — Infirmities</italic>. Whenever possible a statute should be construed so as to obviate or reduce any constitutional infirmities. 8. <italic>Right of Privacy — Home — Communication of Ideas</italic>. Penumbral right of privacy in home may not be utilized to prohibit communication of ideas by mail when sender has not been requested to refrain from doing so.

1. <bold>ASSAULT AND BATTERY</bold> — <italic>First Degree — "Serious Bodily Injury" —</italic><italic>Element — — Proof</italic>. "Serious bodily injury" is an element of first-degree assault which the People must prove beyond a reasonable doubt. 2. <italic>First Degree — Quantum of Risk — Determination — Time of Act</italic>. In prosecution for first-degree assault — in which an element is "serious bodily injury" — which is defined as bodily injury involving a substantial risk of death, quantum of risk involved is to be determined as of the time of the act, not at some point later in time. 3. <italic>Serious Bodily Injury — Prima Facie — Established by People —</italic><italic>Statute</italic>. People established a prima facie case of "serious bodily injury" under the statute (section <cross_reference>18-1-901</cross_reference>(3)(p), C.R.S. 1973), which is an element of first-degree assault, by testimony of physician who treated victim on night of incident and who testified that there was a substantial risk of death from the wound which caused eventual loss of victim's spleen, due to internal bleeding, despite defendant's contention that loss of victim's spleen was not a "serious bodily injury" because there was no "substantial risk of death." 4. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Second-Degree Assault — Lesser Included</italic><italic>Offense — First-Degree Assault</italic>. Second-degree assault is a lesser included offense of first-degree assault since the basic element in both crimes is injury to a person's body, the difference being the degree of injury; and since the means of committing the injury under second-degree assault is identical to first-degree assault it follows that by establishing all of the essential elements of first-degree assault, all of the essential elements of second-degree assault would necessarily be proven.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Undercover Agent — Posing — Unlawful</italic><italic>Transaction — Gains Entry</italic>. There is no unreasonable search when an undercover agent, posing as a willing participant in an unlawful transaction, gains entry by invitation and observes or is handed contraband. 2. <italic>Decoy — Undercover Agent — Judicial Sanction</italic>. The decoy or undercover agent is one weapon in the police arsenal which has received judicial sanction. 3. <bold>ARREST</bold> — <italic>Warrant — Separate Prior Offense — Agent — Undercover</italic><italic>Activity</italic>. The fact that an agent possesses and is intent on serving an arrest warrant for a separate prior offense has no effect on what is otherwise a legitimate form of undercover activity.<page_number>Page 472</page_number> 4. <italic>Warrant — Six-Day Delay — Not Unreasonable</italic>. A six-day delay in executing an arrest warrant is not unreasonable. 5. <italic>Warrant — Executed — Earliest Opportunity — Requirement — Negative</italic>. There are no constitutional requirements dictating that an arrest warrant be executed at the earliest opportunity. 6. <italic>Six-Day Delay — Service of Warrant — Lack of Prejudice — Finding of</italic><italic>Trial Court — Reversible Error</italic>. Where record reflects that six-day delay in service of arrest warrant upon defendant was caused by perceived need to protect the identity of an undercover agent in a collateral investigation, that such delay was not intended to prejudice defendant, nor was defendant in fact prejudiced by the six-day postponement of her arrest, <italic>held</italic>, under these circumstances, trial court's finding — that such arrest constituted an abuse of process and an invasion of defendant's Fourth Amendment right — was reversible error. 7. <italic>Six-Day Delay — Service of Warrant — Additional Hearing — Issue of</italic><italic>Prejudice — Unnecessary</italic>. Where record reflects a six-day delay in service of arrest warrant, there was no need for an additional evidentiary hearing to explore the issue of whether defendant was prejudiced by such delay.

1. <bold>HABEAS CORPUS</bold> — <italic>Custody — Hearing — Trial Court — Determination —</italic><italic>Child's Interest.</italic> In combined hearing on custody action and habeas corpus proceeding, trial court is not limited to an inquiry into the legal right by which the child is held, but must determine the broad question of what will best serve the child's interest. 2. <bold>COURTS</bold> — <italic>Jurisdiction — Custody Order — Oklahoma — Aunt — Temporary —</italic><italic>Father and Mother — Domicile — Colorado — Custody — Mother — Proper.</italic> Where Oklahoma court granted temporary custody of two-year-old child to paternal aunt, who was a resident of Montana, at time when residence of parties was premised solely on a military assignment, and where both father and mother had returned to site of their domicile, namely, Denver, Colorado, and also, child's natural father, mother, and grandparents were all residents of Colorado and had significant connections to Colorado, <italic>held</italic>, under these circumstances, Oklahoma had no continuing jurisdiction since custody order was temporary in nature and parties had relinquished all ties to Oklahoma; hence, ruling of trial court, which denied writ of habeas corpus and granted custody of child to child's natural mother, was proper. 3. <bold>PARENT AND CHILD</bold> — <italic>Custody — Change of Circumstances — Best Interest —</italic><italic>Natural Mother.</italic> In habeas corpus proceeding pertaining to custody of child, record establishes a change of circumstances and supports trial court's determination that child's best interest is served by placing custody in the natural mother.