Volume 190 — Colorado Reports

1. <bold>APPEAL AND ERROR</bold> — <italic>Evidence — Sufficiency — Challenged — Appellate</italic><italic>Court — Review — Favorable — Prosecution.</italic> When sufficiency of the evidence is challenged an appellate court must review all the evidence in a light most favorable to the prosecution; and in so doing, all inferences most favorable in support of the jury's verdict must be drawn. 2. <bold>ASSAULT AND BATTERY</bold> — <italic>Shooting Unarmed Victim — Stomach — Sufficiency</italic><italic>of Evidence — Specific Intent.</italic> In prosecution for second-degree assault, record reflects sufficient evidence to sustain jury's verdict of guilty where testimony discloses that defendant shot unarmed victim in stomach;<page_number>Page 46</page_number> the totality of facts and circumstances surrounding the shooting clearly justify strong inferences which could be drawn by jury that defendant had specific intent to injure victim with his gun.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Testicle — Epididymis — Removal — Lack of</italic><italic>Industrial Disability — Award — Denied.</italic> Where workmen's compensation claimant underwent surgery in which his left testicle and his left and right epididymis were removed and Industrial Commission awarded him "1% permanent partial disability as measured as a working unit" <italic>held</italic>, review of record in instant case does not support a finding of industrial disability or loss of earning capacity, as distinct from a mere functional disability; accordingly, the award is denied.

1. <bold>SEARCHES AND SEIZURES</bold> — <italic>Affidavit — Statement — Informant Was</italic><italic>Reliable — — Standing Alone — Insufficient — Aguilar-Spinelli Test.</italic> Police officer's statement in affidavit — on which search warrant was based — that informant was reliable, standing alone, could not support second prong of <italic>Aguilar-Spinelli</italic> test that there be sufficient information to show that informant was credible or his information reliable. 2. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Affidavit — "Reliable Confidential Informant"</italic><italic>— Two Other Occasions — Aguilar-Spinelli Test — Met.</italic> Where affidavit contained the following information: that the affiant had received information from an unidentified "reliable confidential informant" whose information had proven reliable on at least two other occasions within the recent past, resulting in narcotics arrests and seizures, <italic>held</italic>, this, as such, was sufficient to meet the second prong of the<italic>Aguilar-Spinelli</italic> test, <italic>i.e.</italic>, that the information be sufficient to show that informant was credible, or his information was reliable; hence, motion to suppress heroin found in search pursuant to warrant was properly denied in drug prosecution. 3. <bold>WITNESSES</bold> — <italic>Affidavit — Search Warrant — Credibility — Refusal of</italic><italic>Examination — Abuse — Negative — Probable Cause.</italic> Where, at hearing held on defendant's motion to suppress, trial court refused to allow an examination of affiant as a witness to test the credibility and accuracy of the information contained in affidavit in support of search warrant, <italic>held</italic>, as such, trial court did not abuse its discretion; the standards of probable cause were met on the face of the affidavit, and court had no reason to mistrust the allegations therein; there was no reversible error. 4. <bold>DRUGS AND DRUGGISTS</bold> — <italic>Sentence — Ten to Fourteen — Not Unduly Harsh —</italic><italic>Past Participation — Statutory.</italic> Where defendant was convicted of possession of a narcotic drug and sentenced to ten to fourteen years' imprisonment in the state penitentiary, <italic>held</italic>, this sentence, as such, was not unduly harsh, particularly, where record reflects that defendant's "past participation" was more than minimal and sentence fell within statutory minimum and maximum.<page_number>Page 141</page_number> 5. <bold>CRIMINAL LAW</bold> — <italic>Sentencing — Balloons of Heroin — Considered —</italic><italic>Presentence Report — Acceptance.</italic> Evidence of 96 balloons of heroin found at defendant's apartment building which had been suppressed during drug prosecution trial was not improperly considered by trial court during sentencing through the presentence investigation report; especially, where defendant, who was afforded his right to allocution, did not claim that presentence investigation report was untrue or inaccurate and defense counsel in fact accepted the report.

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Menacing — Remarks — Failure to Produce</italic><italic>Witnesses — Shift — Burden of Proof — Negative.</italic> In prosecution for menacing, remarks by prosecuting attorney concerning defendant's failure to produce certain witnesses to corroborate his alibi testimony did not effect an impermissible shift in the burden of proof so as to require the granting of a new trial; especially, where record reflects that just prior to making the remarks in question prosecuting attorney stated that defendant did not have to produce evidence, stating: "It is my duty to prove guilt beyond a reasonable doubt"; moreover, trial court gave standard burden of proof and reasonable-doubt instructions. 2. <italic>Comment — Lack of Evidence — Theory — Permissible — Failure to</italic><italic>Testify — Improper.</italic> While it is improper for prosecuting attorney to comment intentionally on a defendant's failure to testify, it is permissible to comment on the lack of evidence confirming defendant's theory of the case. 3. <bold>TRIAL</bold> — <italic>Gag Prosecution — Limit Advocacy — Prohibited — Legitimate Oral</italic><italic>Argument.</italic> In protecting accused against unfair comment, court is not compelled to limit advocacy or to gag prosecution in legitimate oral argument covering the evidence and inferences which can be drawn from the evidence.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Silicosis — Challenge — Occupational Disease</italic><italic>Disability Act — Constitutional Issues — Decline to Rule — Correct.</italic> Where claimant, who had become totally disabled from silicosis, brought action under the Occupational Disease Disability Act, alleging that section 8-60-110(1)(g), C.R.S. 1973, was unconstitutional, referee correctly declined to rule on the constitutional issues. 2. <italic>Occupational Disease Disability Act — Silica — Exposure — Statutory</italic><italic>Classification — "Rational Basis" Test.</italic> Where statutory classification set forth in section of Occupational Disease Disability Act — granting benefits to disabled employees exposed to harmful quantities of silica for five years or more and denying benefits to those who had been so exposed for less that five years — was not "suspect" and did not infringe upon a "fundamental right" — <italic>held</italic>, under these circumstances, trial court acted correctly in examining the statutory classification in issue by the "rational basis" test which requires only that the classification bear a reasonable relationship to a legitimate state objective. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Occupational Disease Disability Act — Silica —</italic><italic>Legitimate State Objective — Negative — Abridge — Equal Protection.</italic> Where classification in section of Occupational Disease Disability Act granted benefits to certain disabled employee exposed to harmful quantities of silica for five years or more and denied benefits to those who were exposed for less than five years, <italic>held</italic>, since such classification had no reasonable relation to a legitimate state objective, denial of benefits to claimant solely on basis of such classification unconstitutionally operated to abridge claimant's right to equal protection of the laws.

1. <bold>ARBITRATION</bold> — <italic>Reference to Revocation — Construed to Mean — Waiver of</italic><italic>Agreement.</italic> Trial court's reference to revocation of right to arbitrate by the parties, by virtue of their filing of law suits, would be construed by reviewing court to mean that the parties waived their agreement to arbitrate. 2. <bold>PROHIBITION</bold> — <italic>Writ — Use — Prevention — Inferior Body — Exercising —</italic><italic>Jurisdiction.</italic> A writ of prohibition under Colo. Const. Art. VI, § 3, and<page_number>Page 283</page_number> C.A.R. 21 is traditionally used to prevent an inferior judicial body from exercising a jurisdiction with which it is not vested. 3. <italic>Not to Include — Correction of Error.</italic> The writ of prohibition does not include the correction of error made by the trial court. 4. <italic>Use — Lieu of Writ of Error — Prohibited.</italic> Prohibition may not be used to restrain a trial court from committing error in deciding a question properly before it; it may not be used in lieu of writ of error. 5. <bold>APPEAL AND ERROR</bold> — <italic>Arbitration — Ruling — Waiver — Reviewing Court —</italic><italic>Non-Intervention — Correction.</italic> Where trial court ruled that parties to house construction contract had waived their right to arbitration — the court concededly having jurisdiction to rule on question of waiver — nevertheless, reviewing court would not inject itself at this juncture into the ruling of waiver; and if in fact the district court erred in its ruling, that error may be corrected on appeal. 6. <bold>PROHIBITION</bold> — <italic>Delay and Expense — Trial — Grounds — Negative</italic>. The delay and expense of a trial may not be urged as grounds for prohibition.

1. <bold>CONSTITUTIONAL LAW</bold> — <italic>Statute — Constitutionality — Essential —</italic><italic>Determination.</italic> The constitutionality of a statute will not be passed upon unless essential for a determination of the case presented. 2. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Tenured Teacher — Dismissal — One Ground</italic><italic>— Unconstitutional — Considered — Appeal.</italic> Where tenured high school teacher challenged all grounds for his dismissal, argument that one ground for dismissal of teacher was unconstitutional would be considered on appeal, despite contention that dismissal could be sustained on the basis of other independent grounds.<page_number>Page 415</page_number> 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Vagueness — First Amendment — Negative —</italic><italic>Examination — Facts.</italic> Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. 4. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Dismissal — "Immorality" — Affect —</italic><italic>Teacher's Work — Implied — Statute</italic>. Though section 22-63-116, C.R.S. 1973, does require that the "immorality" — as a ground for dismissal of a tenured teacher — be in relation to, or affect the teacher's work, nevertheless, such a requirement can be readily implied from the language of the statute. 5. <italic>Immorality — Determination — Teacher's Conduct — Unfitness —</italic><italic>Consideration — Factors.</italic> In determining whether the teacher's conduct indicates an unfitness to teach, the board of education — under the statute making "immorality" one ground for dismissal of tenured high school teacher — may properly consider such matters as the age and maturity of the teacher's students, the likelihood that his conduct may have adversely affected students and other teachers, the degree of such adversity, proximity or remoteness in time of the conduct, likelihood that the conduct may be repeated, motives underlying it, and extent to which discipline may have a chilling effect upon either the rights of the teacher involved or other teachers. 6. <italic>Power to Dismiss and Discipline Teachers — Protect — Community —</italic><italic>Harm.</italic> Board of education's power to dismiss and discipline teachers is not merely punitive in nature and is not intended to permit the exercise of personal moral judgments by board members; rather, it exists and finds its justification in the state's legitimate interest in protecting the school community from harm, and its exercise can only be justified upon a showing that such harm has or is likely to occur. 7. <italic>Adverse Influence — Students — Unfit Teachers — Misbehavior —</italic><italic>Dismissal.</italic> In view of the desirability of preventing unfit teachers from adversely influencing students, reviewing court concludes that board of education may properly dismiss those teachers whose misbehavior has had the requisite degree of adverse impact. 8. <italic>Conduct — Adverse Effect — Ability to Teach — Finding — Implicit —</italic><italic>Dismissal of Teacher.</italic> Even though no specific finding was made that tenured teacher's conduct — which included, inter alia, the intimate touching of minor female students while on a school field trip — had an adverse effect on his ability to teach, such finding was necessarily implicit in teacher's dismissal, particularly, in view of the nature of his conduct and his admitted willingness to repeat it "given a similar set of circumstances." 9. <italic>Immorality — Dismissal — Sexually Provocative Conduct.</italic> Under statute making "immorality" one ground for dismissal of tenured high school teacher, whenever a male teacher engages in sexually provocative or exploitive conduct with his minor female students a strong presumption of unfitness arises against the teacher. 10. <italic>Statute — Immorality — Dismissal — Affect — Fitness to Teach — Not</italic><italic>Unconstitutionally Vague.</italic> Section 22-63-116, C.R.S. 1973 — which makes<page_number>Page 416</page_number> "immorality" one ground for dismissal of a tenured high school teacher and construed so as to require a finding that the allegedly immoral conduct adversely affected the teacher's fitness to teach — is not unconstitutionally vague and constitutes a valid ground for dismissal. 11. <bold>STATUTES</bold> — <italic>Penal and Civil — Notice — Forbid — Precision — Never</italic><italic>Demanded.</italic> Both penal and civil statutes must be drawn in such a way as to give men of common intelligence notice of what they forbid; nevertheless, total precision of expression has never been demanded of the legislature. 12. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Teacher — Immorality — Dismissal —</italic><italic>Statute — Due Process.</italic> Section 22-63-116, C.R.S. 1973, which makes "immorality" one ground for dismissal of a tenured high school teacher was sufficiently precise to meet minimal due process standards even though teacher may in good faith have considered his conduct — intimately touching minor female students and speaking vulgar language on school field trip — entirely moral. 13. <bold>STATUTES</bold> — <italic>Drawn — Idiosyncratic Few — Negative.</italic> Statutes cannot be drawn from the point of view of the idiosyncratic few. 14. <italic>Duties of Board of Education — Statutes — Consideration — Charges —</italic><italic>Hearing — Investigation.</italic> Under statutes providing for consideration of charges against school teacher by board of education, the board, must not, prior to a hearing, so thoroughly investigate the matter as to render the subsequent statutory hearing superfluous; however, board may properly conduct a limited preliminary investigation to determine if there is any real substance to charge against teacher in order to avoid unnecessary embarrassment to teacher and to avoid waste of time; but board must do nothing in preliminary inquiry that would serve to remove appearance of fairness from its eventual determination. 15. <italic>Dismissal — Tainted — Lack of Showing — Board of Education —</italic><italic>Discharge of Duty — Proper.</italic> Where tenured high school teacher made no showing whatever that his dismissal was tainted by a lack of impartiality by board of education by its preliminary inquiry into validity of charges raised against teacher, <italic>held</italic>, under such circumstances, reviewing court would assume that board of education properly discharged its statutory duty. 16. <italic>Counsel — Action — Imprudent — Accompany — Board of Education —</italic><italic>Lack of Prejudice — Reversal — Negative</italic>. Although counsel for board of education — who had acted in an adversary role akin to that of prosecutor in hearing concerning charges against tenured high school teacher — may have acted imprudently when he accompanied board of education when it retired in private to deliberate regarding teacher's employment, nevertheless, in light of all the evidence, the fact that board's counsel cast no vote, and apparent absence of any substantial prejudice to teacher, such conduct did not warrant reversal of teacher's dismissal. 17. <bold>COSTS</bold> — <italic>Teacher — Hearing — Payment — Statute — Penalize — Negative.</italic> In view of fact that statute (section 22-63-117, C.R.S. 1973) relating to costs was not intended to penalize teachers who exercised their statutory and constitutional right to a hearing, neither panel, board of education, nor district court had jurisdiction to require teacher to pay a share of costs of dismissal hearing.<page_number>Page 417</page_number>

1. <bold>COURTS</bold> — <italic>Appeal — District Court — Breach of Lease — Exceptions to</italic><italic>Jurisdiction — Supreme Court — Election — Certified — Court of Appeals.</italic> Even though it was argued that appeal from district court order dismissing action against State Board of Land Commissioners for alleged breach of<page_number>Page 427</page_number> lease did not fall within any of the exceptions to the jurisdiction of the Court of Appeals, nevertheless, Supreme Court would elect to treat this matter as certified from the Court of Appeals. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Board of Land Commissioners — Grant of Powers —</italic><italic>Broad</italic>. The constitutional grant of powers to the Board of Land Commissioners is broad. 3. <bold>PUBLIC LANDS</bold> — <italic>Board of Land Commissioners — Legislature — Authority to</italic><italic>Regulate.</italic> The legislature has the constitutional authority to regulate the Board of Land Commissioner's activities. 4. <italic>State Board of Land commissioners — Exceed — Limits — Prohibited</italic>. The State Board of Land Commissioners may not contradict or exceed its specific statutory limits. 5. <italic>State Board of Land Commissioners — Leases — Maximum Revenues.</italic> The constitution mandates that, unless limited by express statutory regulations, the State Board of Land Commissioners shall enter into whatever leases it deems to be most beneficial to the state and may utilize any lease terms not prohibited by law in order to obtain maximum revenues. 6. <italic>State Board of Land Commissioners — Authority — Lease — State Land —</italic><italic>— Cancellation</italic>. The State Board of Land Commissioners was authorized to enter into lease of state land which reserved to the state the right to lease any portion for mineral purposes, together with such surface rights as might be necessary and which reserved the right to cancel the lease on all or any part of the leased premises upon ninety (90) days' notice to the lessee by mail. 7. <italic>Lessee — Precluded — Incidental Damages — Damage Claim — Board —</italic><italic>Proper — Statute.</italic> Even though lessee of surface rights in state land is precluded from pursuing claim for incidental damages allegedly caused by mining operations, lessee, nevertheless, did have administrative remedy to pursue damage claim before Board of Land Commissioners under section<cross_reference>36-1-131</cross_reference>, C.R.S. 1973.

1. <bold>UNEMPLOYMENT COMPENSATION</bold> — <italic>Legislative Intent — Colorado Employment</italic><italic>Security Act. — No Award</italic>. The legislative intent behind the Colorado Employment Security Act is clear; the funds reserved pursuant to the statute are to be used to benefit persons unemployed through no fault of their own; and the expressed policy is made effective by C.R.S. 1963, 82-4-8(6) which describes the circumstances where no award is to be given. 2. <italic>Substantial Evidence — Findings and Conclusions — Appeal —</italic><italic>Determination — Undisturbed.</italic> Where there is substantial evidence in the record to justify findings of fact and conclusions of the Industrial Commission, the Commission's determination would not be disturbed on appeal. 3. <italic>Disqualification — Rudeness and Insolence — Support — Evidence.</italic> Industrial Commission's determination — which affirmed referee's decision that claimant would be disqualified for 26 weeks from unemployment compensation on ground of rudeness, insolence or offensive behavior not reasonably to be countenanced by supervisor or fellow workers — was supported by substantial evidence.

1. <bold>ATTORNEY GENERAL</bold> — <italic>District Attorney — Statutes — Not Inconsistent</italic>. Section <cross_reference>24-31-101</cross_reference>(1)(a), C.R.S. 1973, which provides that the attorney general shall appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor or the general assembly, does not conflict with section <cross_reference>20-1-102</cross_reference>, C.R.S. 1973, which provides that district attorneys are specifically authorized, <italic>inter alia</italic>, to appear in all indictments, actions, and proceedings which may be pending in the district court in any county within his district wherein the state or people thereof or any county of his district may be a party; the two provisions are not inconsistent; the specific duty imposed on the district attorneys in no wise limits or excludes the general authority of the attorney general upon the same subject. 2. <italic>Indictments — State Grand Jury — Investigate and Prosecute —</italic><italic>Disorders — Penitentiary</italic>. With reference to indictments returned by the State Grand Jury on evidence which was the product of an investigation conducted by the attorney general after the governor had issued an executive order directing him to investigate and prosecute "all actions and proceedings" stemming from disorders occurring within the state penitentiary, the attorney general had the right to assume the prosecutorial responsibilities.<page_number>Page 484</page_number>

1. <bold>WORDS AND PHRASES</bold> — <italic>Autrefois Convict</italic>. The plea of <italic>autrefois convict</italic> is unavailing unless the charge to which it is interposed is precisely the same in law and in fact as the former one relied on under the plea, and the test as to the identity of the offenses is whether the same evidence is required to sustain each. 2. <bold>ASSAULT AND BATTERY</bold> — <italic>Two — One Criminal Episode — Plea of Guilty —</italic><italic>Prior Convictions — Bar — Later Prosecution — Negative</italic>. Even though record reflects two assaults on two victims during one criminal episode, and municipal offenses of "disturbance" and "assault" — with which defendant was charged and to which he pleaded guilty — were based only on one assault, nevertheless, under the "same evidence" test, two different crimes were perpetrated and thus defendant's prior convictions for municipal offenses did not bar subsequent prosecution on felony-assault charge based on other assault. 3. <bold>CRIMINAL LAW</bold> — <italic>Double Jeopardy — Negative — Municipal Offenses — Not</italic><italic>Same as Burglary</italic>. In view of fact that municipal offenses of "disturbance" and "assault" did not constitute same offense as "burglary" — which<page_number>Page 520</page_number> required proof of facts not necessary to sustain either of two municipal ordinance violations to which defendant pleaded guilty — subsequent prosecution for burglary did not violate constitutional prohibition against double jeopardy for same offense. 4. <italic>Double Jeopardy — Single Act — Offense — Two Statutes — Exemption —</italic><italic>Negative</italic>. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. 5. <bold>CRIMINAL PROCEDURE</bold> — <italic>Joinder of Offenses — Burglary — Assault —</italic><italic>Election</italic>. Under Crim. P. 8(a) involving joinder of offenses, district attorney, who declined to join offense involving assault on one victim in a separate count, would be foreclosed from raising it in a subsequent prosecution; and, having made his election he may proceed only on the burglary charge and the assault charge which involved another victim but which arose out of the same criminal episode. 6. <bold>CRIMINAL LAW</bold> — <italic>Double Jeopardy — Burglary — Assault — Right to</italic><italic>Proceed — — Not Restricted — Lack of Responsive Pleading</italic>. Where it was determined that double jeopardy provisions of the United States and Colorado Constitutions were not a bar to prosecutions of burglary and assault charges in issue, district attorney's right to proceed in such prosecutions was not restricted by the fact that no responsive pleading had been filed by defendant on appeal from dismissal of felony-assault charge against defendant.

1. <bold>SODOMY</bold> — <italic>Deviate Sexual Intercourse — Statute — Not Unconstitutionally</italic><italic>Vague</italic>. Statute (1971 Perm. Supp., C.R.S. 1963, 40-3-404(1)(a)) — which provides that a person commits "deviate sexual intercourse by imposition if: He compels the other person to participate by any threat <italic>less</italic> than those set forth in section 40-3-403(1)(a), [a threat of imminent death, serious bodily harm, extreme pain, or kidnapping, to be inflicted by anyone] but of sufficient consequence <italic>reasonably</italic> calculated to prevent resistance — is not unconstitutionally vague. 2. <bold>STATUTES</bold> — <italic>Presumption of Constitutionality — Attack — Burden of</italic><italic>Proof — — Beyond Reasonable Doubt</italic>. Legislative enactments are presumed to be constitutional; and parties attacking their validity carry a heavy burden of proof, since invalidity must be established clearly beyond a reasonable doubt. 3. <bold>SODOMY</bold> — <italic>Deviate Sexual Intercourse — Statute — Conviction — Standpoint</italic><italic>— Reasonable Person</italic>. Conviction under statute (1971 Perm. Supp., C.R.S. 1963, 40-3-404(1)(a) outlining deviate sexual intercourse by imposition<page_number>Page 555</page_number> depends upon the factfinder's determination from standpoint of reasonable person, that threat used by defendant was sufficient enough to be reasonably calculated to prevent resistance by victim. 4. <italic>Penal — Jury — Determine — Reasonableness — Vague — Negative</italic>. The fact that a penal statute is framed in a way such as to require a jury to determine a question of reasonableness does not make it too vague to afford a practical guide to acceptable behavior. 5. <bold>STATUTES</bold> — <italic>Total Precision — Elusive</italic>. Total precision of expression is elusive and has never been demanded of the legislature in enactment of statute. 6. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Deviate Sexual Intercourse — Greater — Lesser</italic><italic>Included Offense — Proper</italic>. Where defendant was charged with violating 1971 Perm. Supp., C.R.S. 1963, 40-3-403(1)(a) (deviate sexual intercourse by force or its equivalent) and jury was instructed under that section, the greater offense, as well as under 40-3-404(1)(a) (deviate sexual intercourse by imposition) the lesser included offense, <italic>held</italic>, in view of fact that greater offense includes all of elements required to prove lesser included offense trial court therefore properly instructed jury on lesser included offense (deviate sexual intercourse by imposition) of which defendant was convicted.