Volume 191 — Colorado Reports

1. <bold>INITIATIVE, REFERENDUM, RECALL</bold> — <italic>Twenty-Five Percent Limitation —</italic><italic>Applicable — Statutory Enactments</italic>. The 25 percent limitation, expressed in the constitution to the effect that legislative body of local governmental unit shall not require that petition for recall of local officer be signed "by electors more in number than twenty-five percent" of vote cast at last preceding election for such office, is applicable to statutory enactments pertaining to requirements for recall petitions. 2. <italic>Fundamental Right</italic>. The power of recall — like that of the initiative and referendum — is a fundamental right of citizens within a representative democracy. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Fundamental Rights — Infringe — Prohibited</italic>. Neither the legislature nor local lawmaking bodies may infringe constitutionally protected fundamental rights. 4. <bold>INITIATIVE, REFERENDUM, RECALL</bold> — <italic>Reservations — Liberal — Limitations —</italic><italic>Strictly Construed</italic>. Reservation of the power of recall in the people must be liberally construed in favor of the ability to exercise it; conversely, limitations on the power of recall must be strictly construed. 5. <bold>OFFICERS</bold> — <italic>Recall — Statutory Provision — Percent — Registered —</italic><italic>Violation — Constitution</italic>. Statutory provision (section 30-10-202, C.R.S. 1973), which required that petition for recall of elective officer had to be signed by registered electors entitled to vote on recall question equal in number to forty percent of vote cast at last preceding election for such office, violated state constitutional provision that legislative body of local government unit shall not require that a petition for recall of local officer be signed "by electors more in number than twenty-five percent" of vote cast at last preceding election for such office. 6. <bold>STATUTES</bold> — <italic>"Forty Percent" — "Registered Voter" — Unconstitutional —</italic><italic>Severable</italic>. Unconstitutional "forty percent" and "registered voter" requirements of statute — which provided that petition for recall of elective county officer had to be signed by registered electors entitled to vote on recall question equal in number to forty percent of vote cast at<page_number>Page 33</page_number> last preceding election for that office — was severable from rest of statute; thus, the other provisions of such statute remained valid. 7. <italic>Portions — Unconstitutional — Remaining — Valid — Complete and</italic><italic>Independent</italic>. When portions of a statute are held unconstitutional, the remaining provisions will remain valid if they are complete in themselves and are not dependent on the invalid parts.

1. <bold>ARREST</bold> — <italic>Stop — No Traffic Violation — Driving From House —</italic><italic>Surveillance — Narcotics — Lack of Probable Cause — Suppression — Proper</italic>. Where defendant was stopped while driving away from house under police surveillance in response to repeated telephone calls from anonymous informant that its occupants might be involved in narcotics trafficking, and where evidence was undisputed that defendant had committed no traffic violations of any sort, and that reason for stopping him was to find out who he was and what he was doing, to see if something could be found that might have come from the house under surveillance, <italic>held</italic>, under these circumstances, there was no probable cause for defendant's apprehension and arrest, and the resultant search and seizure was therefore illegal; the motion to suppress should have been granted. 2. <bold>MOTOR VEHICLES</bold> — <italic>Display of License — Officer — Stop — Driver — Proper</italic><italic>Purpose — Statute — Unlimited Authority — Negative</italic>. The clear intent of section <cross_reference>42-2-113</cross_reference>, C.R.S. 1973 — requiring that licenses be displayed to peace officers on demand — is to permit the officer to demand the license of the driver whose vehicle has been stopped for an otherwise proper purpose; statute however did not confer upon police officer unlimited discretionary authority to stop any automobile at any time for any reason so long as he asked contemporaneously for display of driver's license. 3. <bold>ARREST</bold> — <italic>Stop Person — Statute — Suspect — Crime — Commission — About</italic><italic>to Commit — Own Facts</italic>. With reference to statute (section <cross_reference>16-3-103</cross_reference>, C.R.S. 1973) permitting peace officer to stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime, each case must be carefully examined on its own facts. 4. <bold>MOTOR VEHICLES</bold> — <italic>Violation — Traffic Laws — Negative — Stopping of</italic><italic>Vehicle — Unjustified — Stone v. People — Statute</italic>. Under facts of instant case, record reveals no circumstances which — under a reading of any of Supreme Court's previous decisions involving temporary police detention within the contemplation of <italic>Stone v. People</italic> or of section <cross_reference>16-3-103</cross_reference>, C.R.S. 1973 — could legitimate the stopping of defendant's vehicle as a temporary detention, particularly where officers had never seen or heard of defendant before, did not even know if drug trafficking actually had taken place in house under surveillance, and had no reason to believe the sack defendant carried contained drugs, nor did defendant violate any traffic laws as he drove away; nor can defendant's making of a furtive gesture be deemed<page_number>Page 82</page_number> sufficient to justify a determination that reasonable suspicion existed in instant case. 5. <bold>ARREST</bold> — <italic>Stop — Unlawful — Evidence — Plain View — Inadmissible</italic>. Where police officers' stop of defendant's automobile was unlawful, evidence seized therefrom was inadmissible even if found in plain view.

1. <bold>TAXATION</bold> — <italic>Over-Assessment — Relief — Knowledge — Subsequent — Statute</italic>. The statute (1965 Perm. Supp., C.R.S. 1973, <cross_reference>39-10-114</cross_reference>) providing for abatement or cancellation of taxes afford the taxpayer relief from the over-assessment of his property in situations where his knowledge of the excessive charge is acquired subsequent to the usual statutory deadline for protest. 2. <italic>Erroneous Assessment — Mailing — Fix — Incorrect and Lower Valuation</italic><italic>— Negative</italic>. Mailing of an erroneous assessment did not irrevocably fix the incorrect and lower valuation as the true base figure, and assessor or treasurer was not thereafter prohibited from establishing the correct assessed valuation after the annual June first deadline for sending increase notices. 3. <italic>Correction of Errors — Assessment Roll — Statute</italic>. Under 1965 Perm. Supp., C.R.S. 1963, 137-5-25, the assessor and treasurer is expressly authorized to correct errors in the assessment roll at any time, before or after, the treasurer receives the tax warrant. 4. <italic>Remedies — Correction of Errors — Mandatory — Proof — Noncompliance —</italic><italic>— Deprivation — Statute</italic>. Statutory requirements set forth in 1965 Perm. Supp., C.R.S. 1963, 137-5-22 pertaining to taxpayer's remedies to correct errors are mandatory only if an aggrieved taxpayer can show that noncompliance by county officials has deprived him of an opportunity for a hearing or other rights which he might otherwise have had. 5. <italic>Excessive or Erroneous — Failure to Allege — No Grievance — No</italic><italic>Valid Complaint — Objection — Academic</italic>. Where taxpayer failed to allege that the valuation reflected in the tax notice was either excessive or erroneous, <italic>held</italic>, since taxpayer had no grievance as to the assessed valuation, it had no valid complaint about the improper notice and objection to levy was therefore purely academic.<page_number>Page 102</page_number>

1. <bold>RELEASE</bold> — <italic>Covenants Not to Sue — Personal Injury Liability</italic>. Covenants not to sue and other contracts in regard to personal injury liability involve both tort and contract problems and will not be dealt with automatically according to the <italic>lex loci contractus</italic> (the law of the place where the contract was made.)<page_number>Page 162</page_number> 2. <italic>Covenant Not to Sue — "Most Significant Relationship" Test — Colorado</italic><italic>Law — Interpretation</italic>. Where record reflects that both negligent conduct and automobile accident occurred in Colorado, motor vehicle operator employed by respondent construction company and involved in accident resides in Colorado, respondent company is authorized to do business in Colorado, the terms of the covenant not to sue operator were negotiated, in part, from Colorado, and subsequent law suit against respondent company was brought in Colorado, <italic>held</italic>, under these circumstances, Colorado law, under "most significant relationship" test, would govern interpretation and effect of covenant not to sue; and fact that plaintiffs are residents of Illinois and that covenant was executed there are not substantial enough factors to result in application of the law of a foreign jurisdiction. 3. <italic>Covenant Not to Sue — Operator — Suit Against Employer — Respondeat</italic><italic>Superior</italic>. Plaintiffs, who executed covenant not to sue operator of other vehicle for injuries sustained in automobile collision, without reservation of right to sue operator's employer, were not precluded from suing operator's employer on theory of respondeat superior for injuries so sustained.

1. <bold>CRIMINAL EVIDENCE</bold> — <italic>Surrebuttal — New Matter — Rebuttal — Discretion</italic>. Defendants should always be permitted to introduce as surrebuttal, evidence which tends to meet <italic>new</italic> matter introduced by the prosecution on rebuttal; otherwise, it is within the discretion of the trial court to allow or deny surrebuttal. 2. <italic>Surrebuttal — Not in Response — New Evidence — Denial — Request —</italic><italic>Proper</italic>. In prosecution for rape, where the evidence which defendant sought to introduce on surrebuttal was not in response to <italic>new</italic> evidence, trial court did not abuse its discretion in denying the defendant's request. 3. <bold>NEW TRIAL</bold> — <italic>Newly Discovered Evidence — Not Favored — Prevention —</italic><italic>Injustice</italic>. Motions for new trial based upon newly discovered evidence are not favored and are only granted to prevent manifest injustice. 4. <italic>Denial — Overturn — Abuse of Discretion</italic>. Denial of motion for new trial will not be overturned unless the trial court has clearly abused its discretion. 5. <italic>Prerequisite — Diligent Search — Evidence — Prior and During</italic>. A cardinal prerequisite to the granting of a motion for new trial is a showing by the defense that a diligent search and inquiry has been made to discover all possible evidence favorable to the defendant prior to and during the trial. 6. <italic>Failure to Show — Diligent Search — All Possible Evidence — Denial</italic><italic>of Motion</italic>. Where defense counsel failed to make showing of diligent search and inquiry to discover all possible evidence favorable to defendant prior to and during trial, trial court's discretion in denying motion for new trial based on newly discovered evidence would not be disturbed. 7. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Gross Sexual Imposition — Lesser-Included</italic><italic>Offense — Rape</italic>. Gross sexual imposition, 1971 Perm. Supp., C.R.S. 1963, 40-3-402, is a lesser-included offense of rape, 1971 Perm. Supp., C.R.S. 1963, 40-3-401(1)(a). 8. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Lesser-Included Offense — Basis — Acquittal —</italic><italic>Conviction — Included Offense</italic>. Before court is required to charge the jury with respect to a lesser-included offense, a rational basis must exist for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.<page_number>Page 176</page_number> 9. <bold>RAPE</bold> — <italic>Failure to Testify — Defendant — Instruction — Lesser-Included</italic><italic>Offense — Not Warranted</italic>. In prosecution for rape, where the only evidence as to the manner in which the alleged rape occurred was presented by the prosecutrix, and where defendant did not testify in his own behalf, <italic>held</italic>, under such circumstances, defendant was not entitled to an instruction on the lesser-included offense of gross sexual imposition, inasmuch as no evidence in the record would support the giving of such an instruction.

1. <bold>INTOXICATING LIQUORS</bold> — <italic>Retail Liquor Store License — Denial — Arbitrary</italic><italic>and Capricious</italic>. Denial by board of county commissioners of retail liquor store license to applicants on ground that needs of neighborhood were being met was arbitrary and capricious where support for proposed store was not only substantial, but there were no similar liquor outlets within the neighborhood, as defined by board, and nearest similar outlet was over four miles away. 2. <italic>Conviction — Applicant — Driving — Ability Impaired — Considered —</italic><italic>Duty of Board — Findings</italic>. A conviction of a licensed applicant for driving a motor vehicle while his ability is impaired might be considered by board of county commissioners with respect to "other pertinent matters affecting the qualification of the applicant for the conduct of the type of business proposed," but when the board considers such "other pertinent matters" it must in its findings point out how it feels applicant's qualifications to conduct the proposed business were affected by such matters.

1. <bold>LIMITATION OF ACTIONS</bold> — <italic>Statute of Limitations — Equitable Estoppel</italic>. Where a party by its acts or omissions contributes to the running of the statute of limitations, the doctrine of equitable estoppel will prevent its raising the statute of limitations as a defense. 2. <italic>Plea — Statute of Limitations — Prohibited — Failure to Comply</italic>. A party will not be heard to plead the statute of limitations if he himself is not in compliance with his statutory duty.<page_number>Page 207</page_number> 3. <bold>SECURED TRANSACTIONS</bold> — <italic>Uniform Consumer Credit Code — Duty —</italic><italic>Disclosure</italic>. The Uniform Consumer Credit Code imposes an affirmative duty of disclosure on creditors. 4. <bold>LIMITATION OF ACTIONS</bold> — <italic>Debtor — Creditor — Breach of Duty — Delay —</italic><italic>Disclosure — Interest Rate — Tolled — Equitable Estoppel</italic>. Where creditor continued on in its breach of duty in delaying the debtors' knowledge of the true interest rate for a period of five and one-half months, even after being ordered to take corrective action by the Colorado Uniform Consumer Credit Code Administration, <italic>held</italic>, even assuming <italic>arguendo</italic> that violation occurred at time of loan closing, statute of limitation provision embodied in U.C.C.C. provision pertaining to disclosure was tolled under the doctrine of equitable estoppel and did not bar debtors' demand for attorneys' fees. 5. <italic>Rescission — Loan — Security Interest — Void — Failure to Comply —</italic><italic>Disclosure Provisions — Debtor — Retention of Possession</italic>. Under section<cross_reference>5-5-204</cross_reference>(2), any security interest given by the debtor becomes void by law upon rescission of loan transaction by debtor as a result of creditor's failure to comply with disclosure provisions of Uniform Consumer Credit Code, however, no duty is imposed upon the debtor until after performance of creditor's obligations; and until the obligations are performed, the debtor is entitled to retain possession of any property delivered from the creditor to the debtor. 6. <italic>Uniform Consumer Credit Code — Creditor — Remove Cloud — Tender —</italic><italic>Failure — Vesting — Provision — Impetus</italic>. Under section <cross_reference>5-5-204</cross_reference>(2), C.R.S. 1973 of the Uniform Consumer Credit Code, the creditor is required to remove cloud on title of debtor's residence within ten days, and then and only then is the debtor obligated to tender; after tender by debtor, if creditor fails to take possession of property tendered, ownership of property vests in debtor without obligation to pay, <italic>held</italic>, this statutory provision, as such, is intended solely as an impetus for the creditor to take immediate action to clear title and fulfill its statutory obligations. 7. <italic>Uniform Consumer Credit Code — Debtor — Obligation to Tender —</italic><italic>Creditor — Release — Security Interest — Failure — Relief</italic>. Under section<cross_reference>5-5-204</cross_reference>(2), C.R.S. 1973 of the Uniform Consumer Credit Code, the debtor's obligation to tender arises only after the creditor releases the security interest, however, if such security interest is not released within ten days following notice of rescission, the debtor is relieved of the obligation to tender and the property vests in the debtor. 8. <italic>Creditor — Failure to Release — Rescission — Debtor — Unpaid</italic><italic>Principal — Payment — Lack of Obligation</italic>. Where creditor failed to fulfill its obligations under the Uniform Consumer Credit Code (section<cross_reference>5-5-204</cross_reference>(2), C.R.S. 1973) by releasing security interests in debtor's furniture and home, after debtors rescinded loan transaction, <italic>held</italic>, under the circumstances, debtors had no obligation to pay the unpaid principal. 9. <bold>PAWNBROKERS AND MONEY LENDERS</bold> — <italic>Uniform Consumer Credit Code — Borrower</italic><italic>and Buyer — Treated Same — "Property" — Credit Sales — Consumer Loans</italic>. Under section <cross_reference>5-5-204</cross_reference>, C.R.S. 1973 of the Uniform Consumer Credit Code, the consumer borrower and the consumer buyer are to be treated the same, the<page_number>Page 208</page_number> term "property" not being limited to that purchased on credit; statute expressly applies to consumer credit sales and consumer loans. 10. <bold>SECURED TRANSACTIONS</bold> — <italic>Uniform Consumer Credit Code — "Otherwise</italic><italic>Provided" — Interpreted</italic>. Section <cross_reference>5-5-204</cross_reference>(5) which states: "Except as otherwise provided, no violation of this code [Uniform Consumer Credit Code] impairs rights on a debt," is interpreted by reviewing court to be simply that <cross_reference>5-5-204</cross_reference>(2) as "otherwise provided."

1. <bold>PROFESSIONS AND OCCUPATIONS</bold> — <italic>Collection Agencies — Licensed — Statute</italic>. To act as such, collection agencies must be licensed in this state pursuant to statute. 2. <italic>Collection Agency — Solicit Claims — Assignments — Statute</italic>. Under section <cross_reference>12-14-123</cross_reference>, C.R.S. 1973, a licensee can solicit claims for collection, take assignments thereof and pursue the collection thereof with necessary collection procedure. 3. <bold>ATTORNEY AND CLIENT</bold> — <italic>Collection Agency — Assignee — Entitled to Bring</italic><italic>Action — Practice of Law — Negative</italic>. Incorporated, licensed collection agency, which had undertaken to collect alleged accounts payable and an alleged note payable — the holder of the accounts receivable and the payee of the promissory note having assigned the legal title therein to the agency — was not engaged in the unauthorized practice of law by bringing action in its own name to collect the alleged indebtedness; rather, as assignee of the accounts and notes, it is the one entitled to bring the action, and it engages its own counsel. 4. <bold>PARTIES</bold> — <italic>Assignee of Claim — Real Party in Interest</italic>. The assignee of a claim may maintain an action thereon as the real party in interest even though there is annexed to the transfer the condition that when the claim is collected the whole or some part of it is to be paid to the assignor. 5. <bold>LICENSES</bold> — <italic>Collection Agencies — Statute — Constitutional</italic>. Statute (section <cross_reference>12-14-101</cross_reference> <italic>et seq</italic>., C.R.S. 1973) regulating licensing of collection agencies is not void as against public policy and is not unconstitutional; under facts of instant case, incorporated, licensed collection agency is not practicing law. 6. <bold>ASSIGNMENTS</bold> — <italic>Collection Agency — Advance Permission — Assignee —</italic><italic>Action — Without Consulting — Assignor</italic>. Licensed collection agency need not obtain advance permission of the assignor of an account or other<page_number>Page 216</page_number> indebtedness prior to commencement of action to collect alleged indebtedness; and in absence of an agreement to the contrary, the assignee is privileged to bring an action without consulting the assignor.

1. <bold>APPEAL AND ERROR</bold> — <italic>Reviewing Court — Substitute — Judgment — Trial</italic><italic>Court — Negative — Factual — Suppression of Statements.</italic> Reviewing court will not substitute its judgment for that of trial court on factual issues relating to the suppression of defendant's incriminating statements. 2. <bold>COURTS</bold> — <italic>United States Supreme Court — Miranda v. Arizona —</italic><italic>Safeguards — — Privilege Against Self-Incrimination.</italic> Under the United States Supreme Court case of <italic>Miranda v. Arizona</italic>, the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 3. <bold>CRIMINAL LAW</bold> — <italic>Self-Incrimination — Privilege — Counsel — Waiver —</italic><italic>Permitted.</italic> Defendant is permitted to waive the constitutional privilege against self-incrimination and the right to retained or appointed counsel, but the waiver must be made voluntarily, knowingly and intelligently. 4. <italic>Waiver — Constitutional Privilege — Self-Incrimination — Burden —</italic><italic>Prosecution.</italic> A heavy burden rests upon the prosecution to show waiver of constitutional privilege against self-incrimination and right to retained or appointed counsel. 5. <italic>Privilege Against Self-Incrimination — Counsel — Waiver — Presumed —</italic><italic>— Confession — Negative.</italic> A valid waiver of constitutional privilege against self-incrimination and right to retained or appointed counsel will not be presumed simply from the fact that a confession was in fact eventually obtained. 6. <bold>ATTORNEY AND CLIENT</bold> — <italic>Defendant — Right — Attorney — Present —</italic><italic>Interrogation.</italic> A defendant is entitled to have an attorney present during course of interrogation. 7. <italic>Request for Attorney — Interrogation — Defendant — Young —</italic><italic>Inexperienced — Denial — Violation — Miranda v. Arizona.</italic> Failure of detectives to honor 18-year-old defendant's request for an attorney by immediately discontinuing their interrogation violated defendant's constitutional rights under <italic>Miranda v. Arizona</italic>, particularly, where the<page_number>Page 235</page_number> accused was young, timid, and inexperienced in such situations; hence, incriminating statements made by defendant during questioning were inadmissible. 8. <italic>Counsel — Request — Accused — Cease Interrogation — Opportunity to</italic><italic>Talk.</italic> Once the accused has requested counsel, police officers must cease interrogation immediately and must, within reasonable period of time, provide accused with opportunity to talk to an attorney.

1. <bold>PUBLIC MEETINGS</bold> — <italic>Statute — Election Commission — Application —</italic><italic>Negative.</italic> The "Colorado Public Meetings Law" (section <cross_reference>29-9-101</cross_reference>, C.R.S. 1973) has no application to proceedings by the Denver Election Commission. 2. <bold>STATUTES</bold> — <italic>General Legislation — Repeal — Specific Law — Negative —</italic><italic>Exception.</italic> General legislation does not repeal specific law or constitutional provisions unless the intent to do so is clear and unmistakable. 3. <bold>ELECTIONS</bold> — <italic>Home-Rule City — Exclude — Press — Public — Deliberations —</italic><italic>Statute.</italic> In light of section 6 of Article XX of the Colorado Constitution — which vests a home-rule city with plenary power to legislate upon, provide, regulate, conduct, and control all matters pertaining to municipal elections — legislature, could not, under the public meetings law (C.R.S. 1963, 3-19-1), strip home-rule city of its constitutionally granted plenary power to deal with municipal elections; accordingly, Denver Election Commission was entitled to go into executive session and could exclude press and members of the public from its deliberations.

1. <bold>ARREST</bold> — <italic>Assault — Vehicle — Suspect — Matched — Knife — Seized —</italic><italic>Admission — Probable Cause</italic>. Where automobile and one of its occupants matched description of vehicle and one suspect given police by victim of assault and where vehicle was stopped in vicinity of assault, <italic>held</italic>, under the circumstances, officer had probable cause to arrest defendant at time knife found under front seat of vehicle was seized, hence, knife was properly admitted into evidence. 2. <bold>JURY</bold> — <italic>Voir Dire — Question to Jurors — Discretion of Court</italic>. The propriety of questions to potential jurors on voir dire is within the discretion of the trial court, and its ruling will not be disturbed on appeal unless an abuse of discretion is shown. 3. <italic>Voir Dire — School Violence — Refusal — Error — Negative — Fair</italic><italic>Trial — Due Process</italic>. In prosecution for assault, trial court did not err in refusing to allow voir dire of a prospective juror concerning whether school violence was one of juror's reasons for leaving teaching profession, especially, where defense counsel was allowed to question juror concerning her views toward violent crime; and neither was defendant denied a fair trial or due process as a result of the trial court's ruling. 4. <bold>WITNESSES</bold> — <italic>Late Endorsement — Discretion of Court</italic>. The allowance of late endorsement of witnesses lies within the discretionary power of the trial court. 5. <italic>Endorsement — Co-defendant — Day of Trial — Lack of Surprise — No</italic><italic>Error</italic>. Where trial court permitted prosecution to endorse co-defendant as a witness on the day of trial and co-defendant testified against defendant the same day, and since record indicates that defense counsel was not caught by surprise by the requested late endorsement and defense counsel stated that he was "preparing both ways" concerning whether witness would or would not testify, <italic>held</italic>, under the circumstances, there was no error; moreover, defense counsel did not contend that reason for delay in endorsing co-defendant was attributable to carelessness or bad faith by district attorney. 6. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Opening Statement — Refusal to Grant</italic><italic>Acquittal — — No Error</italic>. In absence of an indication in record that prosecutor's opening statement failed to state a case, refusal to grant motion for judgment of acquittal following prosecutor's opening statement was not error.<page_number>Page 391</page_number> 7. <bold>CRIMINAL EVIDENCE</bold> — <italic>Photographs — Vicinity — Assault — Identified —</italic><italic>Admissible</italic>. Photographs of vicinity of alleged assault were admissible where they were identified, respectively, by witness, who observed suspect automobile and heard cries for help from victim; they were admissible under the rules governing relevancy. 8. <italic>Photographs — Portray — Scene of Crime</italic>. Photographs may be used to portray, among other things, the scene of the crime. 9. <italic>Knife and Sheath — Admissible — Identified — Chain of Custody</italic>. Knife and sheath — being sufficiently identified by police officer who stated that exhibits "appeared to be the same" items as those which he seized during arrest — were admissible without showing a chain of custody. 10. <italic>Knife — Chain of Custody — Established</italic>. Where knife seized at time of arrest was placed in a lock seal envelope by officer and marked, envelope was deposited with police custodian's office and transported to Denver Forensic Laboratory where officer picked it up and transported it to the Colorado Bureau of Investigation and seal was unbroken at time it was received by Colorado Bureau of Investigation, <italic>held</italic>, under the circumstances, the chain of custody was sufficiently established. 11. <italic>Envelope Seal — Unbroken — Knife — Chain of Custody</italic>. In assault prosecution, where it was certain that envelope seal was unbroken, even though no one was able to state who removed lock seal envelope containing knife seized at time of arrest from custodian's office and took it to forensic laboratory, <italic>held</italic>, this, as such, was not sufficient to establish a deficiency in chain of custody. 12. <italic>Knife — Covered With Blood — Victim — Bleeding — Connection</italic>. Co-defendant's testimony to the effect that when defendant rejoined co-defendant in vehicle after his encounter with victim knife was covered with blood and victim was later found bleeding, this, as such, was sufficient to connect the knife with the crime. 13. <bold>WITNESSES</bold> — <italic>Expert — Competency — Determination — Trial Court</italic>. The competency of an expert is for the trial court to determine and will not be grounds for reversal absent a clear showing of abuse of discretion. 14. <italic>Physician — Describe — Wounds — Treatment — Licensed — Resident —</italic><italic>University — Proper</italic>. Where trial court allowed physician to testify as an expert and to describe wounds and subsequent treatment received by assault victim, <italic>held</italic>, in so doing, trial court did not err; especially where physician was, at time of trial, licensed to practice medicine in North Carolina and was a senior resident in thoracic surgery at University of Colorado and affiliated hospitals; moreover, he treated victim in emergency room at hospital and for a period of six weeks following attack. 15. <italic>Testimony — Physician — Wound — Assault — Proper</italic>. Testimony of physician describing wound received by assault victim was proper as a recitation of what occurred as a result of assault.<page_number>Page 392</page_number> 16. <bold>CRIMINAL LAW</bold> — <italic>Specific Intent — Inferred</italic>. Specific intent may be inferred from the facts and circumstances surrounding the commission of an assault. 17. <bold>ASSAULT AND BATTERY</bold> — <italic>Knife — Attack — Serious Injuries — Specific</italic><italic>Intent</italic>. In prosecution for assault, circumstances indicating that defendant used a knife, attacked victim without a warning, and caused very serious injuries was sufficient to warrant inference of specific intent. 18. <bold>INSTRUCTIONS, CRIMINAL</bold> — <italic>Assault — Criminal Negligence — Record —</italic><italic>Devoid of Evidence</italic>. In prosecution for assault, where record was devoid of evidence to support an instruction on criminal negligence, trial court properly refused to give the tendered instruction; there was no evidence supporting a theory that defendant acted negligently. 19. <bold>CRIMINAL LAW</bold> — <italic>Confession — Statements — Voluntary — Miranda — Waiver</italic>. Findings by trial court at suppression hearing — that defendant knew his rights, that he was not coerced or intimidated or threatened, and that statements given by him to police were voluntarily given — are supported by the record, and his confessions were therefore clearly admissible as a matter of voluntariness; moreover, statements were made by defendant only after he had been informed of his <italic>Miranda</italic> rights once by a county judge and twice by the police, defendant having signed a written waiver of those rights before each statement was given. 20. <bold>ATTORNEY AND CLIENT</bold> — <italic>Accused — Request for Attorney — Questioning —</italic><italic>End</italic>. Once an accused asks for an attorney all police questioning must end. 21. <italic>Request — Before First Statement — Second Statement — Inadmissible —</italic><italic>— Tainted</italic>. If defendant asked for an attorney before he made his first statement, his second statement was also inadmissible, since it was tainted by the illegal procurement of the first. 22. <italic>Request — Lack of Findings — Remand</italic>. Since record shows that trial judge made no findings relating to whether or not defendant did or did not ask for an attorney during questioning or before statements were made, case would be remanded to trial court with instructions to make findings regarding this issue based on the record or any further hearings trial court deems necessary.

1. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Equal Protection Clause — Applicable</italic><italic>— Citizenship Requirement — State Statutes — School Elections</italic>. Local school elections are not contained in types of elections expressly listed in section 2 of the Fourteenth Amendment — which penalizes states for restricting rights to vote — and reference to "citizens" in this section did not warrant conclusion that the equal protection clause was inapplicable to a citizenship requirement imposed by state statutes with respect to school elections; however, section 2 was relevant in construing the equal protection clause as applied to such statutes. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Citizenship — Equal Protection — Strict Judicial</italic><italic>Scrutiny — Inapplicable</italic>. Citizenship with respect to the franchise is not a suspect classification for equal protection purposes and therefore the requirement of strict judicial scrutiny under the compelling interest test does not apply. 3. <bold>ELECTIONS</bold> — <italic>School District — Citizenship Requirements — Contravene —</italic><italic>Equal Protection Clause — Negative</italic>. The state's citizenship requirements for school district elections was properly tailored to the state's interests, and thus did not contravene the equal protection clause of the Fourteenth Amendment, notwithstanding the contention that a school election is a "special interest" election not subject to considerations applicable to voting in general elections. 4. <bold>ALIENS</bold> — <italic>State — Limit — Participation — Political Community — Proper</italic>. The state has a rational interest in limiting participation in government<page_number>Page 400</page_number> to those persons within the political community; aliens are not part of the political community. 5. <bold>ELECTIONS</bold> — <italic>School Election — Voting — Aliens — Prohibited</italic>. A school election is an election which falls within the class of cases prohibiting aliens from voting as contemplated by the United States Supreme Court. 6. <italic>Prohibition — Aliens — Voting — School Elections — Due Process —</italic><italic>Violation — Negative</italic>. The prohibition placed on resident aliens against voting in school elections does not create any conclusive presumption in violation of the due process clause of the Fourteenth Amendment. 7. <bold>ALIENS</bold> — <italic>Power to Regulate — Federal — State — Regulation of</italic><italic>Immigration — Negative</italic>. The power to regulate immigration rests exclusively with the federal government, but not every state provision which deals with aliens is a regulation of immigration which is preempted by the federal government's constitutional power. 8. <italic>Prohibition — Voting — School Elections — Regulate Immigration —</italic><italic>Negative</italic>. Statutes prohibiting aliens from voting in school elections was not an unlawful attempt to regulate immigration or as a violation of the Supremacy Clause. 9. <bold>STATES</bold> — <italic>Voter Qualification — Local Elections — Congress — Intent to</italic><italic>Remove — Negative</italic>. Voter qualification is a primary example of an area which the states have historically occupied, and Congress has not manifested an intent to remove from the states the exercise of this power, nor can it with respect to local elections.

1. <bold>WILLS</bold> — <italic>Classification of Interest — Intent of Testator — Controls</italic>. In classifying an interest created in a will, the intent of the testator must control if not contrary to public policy. 2. <italic>Rules of Construction — Aids</italic>. Rules of construction are merely aids in interpreting testamentary language. 3. <italic>Law — Favors — Early Vesting</italic>. The law favors the early vesting of estates, especially when given to children or those standing in like relation to the testator. 4. <italic>Taxpayer — Vested Right — Moneys — Trust — Subject to Defeasance</italic>. Question certified to Supreme Court of Colorado by Court of Appeals for Tenth Circuit is answered as follows: Under Colorado law, interest of the taxpayer in the trust created in his name under his father's will is not a future interest subject to a condition precedent; the condition of survival is a condition subsequent; taxpayer has a vested right to the moneys designated for him, but that right is subject to complete defeasance in the event he does not survive the life tenant, testator's widow.

1. <bold>SCHOOLS AND SCHOOL DISTRICTS</bold> — <italic>Books — Free — Students — Not Required —</italic><italic>Constitution</italic>. Even though the Colorado Constitution (Art. IX § 2) provides that the general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously, nevertheless, this was not intended to require school districts to furnish books free to all students.<page_number>Page 452</page_number>

1. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>Air Pollution Control Act — Public Enjoyment —</italic><italic>Legislative Objective</italic>. The public enjoyment of the air resources of this state is a stated legislative objective of the Air Pollution Control Act. 2. <bold>STATUTES</bold> — <italic>Constitutionality — Assail — Burden</italic>. One assailing the constitutionality of a statute bears a heavy burden of proof. 3. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>Air Pollution Control Act — Corporation —</italic><italic>Failure of Proof — Visual Opacity — Testing — Arbitrary</italic>. Alfalfa corporation prosecuted for its failure to comply with Air Pollution Control Act failed to demonstrate that visual opacity-testing method for white plume smoke was so arbitrary or capricious as to render Act unconstitutional in the eyes of the law. 4. <bold>EVIDENCE</bold> — <italic>Visual Opacity Inspection — White Smoke Emissions —</italic><italic>Admissible</italic>. Results of visual opacity inspection of alfalfa corporation's white smoke emissions were sufficiently accurate and relevant to permit their introduction into evidence for purposes of hearing before Air Pollution Variance Board. 5. <bold>HEALTH AND ENVIRONMENT</bold> — <italic>Air Pollution Control Act — Visual Opacity</italic><italic>Inspection — Qualifications — Reliability of Testing — Discretion — Trier</italic><italic>of Fact</italic>. In actions to enforce Air Pollution Control Act any question as to method of conducting visual opacity inspection of alfalfa corporation's white smoke emission, qualifications of inspector, or reliability of testing procedure rests in sound discretion of trier of fact. 6. <italic>Visual Opacity Tests — Air Pollution Control Act — Due Process</italic>. Visual opacity tests meet minimal due process standards and are not so arbitrary or capricious as to foreclose the finding of a violation of Air Pollution Control Act based upon such tests alone. 7. <bold>CONSTITUTIONAL LAW</bold> — <italic>Due Process Clause — Colorado — Federal — Same</italic><italic>Guarantees</italic>. The due process clause of the Colorado Constitution, Article II, Section 25, requires at a minimum the same guarantees as those protected by the due process clause of the federal constitution.<page_number>Page 456</page_number> 8. <italic>Concepts of Fairness — Vary</italic>. Concepts of fairness vary depending in part upon the type of proceeding involved and the interests at stake. 9. <bold>NOTICE</bold> — <italic>Due Process — Visual Opacity — Following Completion of</italic><italic>Inspection — Air Pollution Control Act</italic>. Due process contemplates that notice should be given of a visual opacity reading by the Department of Health for purposes of enforcing Air Pollution Control Act within a reasonably short period of time following the completion of the inspection; however, prior or contemporary notice of inspection is not required. 10. <bold>CONSTITUTIONAL LAW</bold> — <italic>Notice — Visual Opacity Reading — Air Pollution</italic><italic>Control Act — Two Weeks After Inspection — Insufficient — Due Process</italic>. Where alfalfa corporation subject to prosecution for its failure to comply with opacity standard of Air Pollution Control Act was not notified of fact that State Department of Health had conducted a visual opacity reading on or near its premises which indicated violation of the Act until almost two weeks subsequent to inspection, <italic>held</italic>, this notice, as such, was not sufficient to meet due process standards.

1. <bold>THEFT</bold> — <italic>Aggregate — Value — Proper Indictment — Felony Theft by</italic><italic>Receiving</italic>. It is not error to aggregate the value of goods allegedly taken from an automobile for the purpose of arriving at the value set forth in the indictment for felony theft by receiving which charged that defendant had unlawfully received "a thing or things of value of more than one hundred dollars." 2. <bold>WITNESSES</bold> — <italic>Owner — Competent — Testify — Value of Property — Felony</italic><italic>Theft by Receiving</italic>. In a felony theft by receiving prosecution, an owner of stolen goods is always competent to testify as to the value of his property. 3. <italic>Prior Similar Transactions — Stolen Goods — Direct Examination —</italic><italic>Prosecution — Rebuttal</italic>. Where defendant raised the issue of prior similar transactions in stolen goods on direct examination, the prosecution was entitled to rebut the defendant's testimony which disclaimed the prior transactions. 4. <italic>Failure to Designate — Inadvertent — Felony Theft by Receiving —</italic><italic>Fair Trial</italic>. Where prosecution inadvertently failed to designate the name of one witness at the time discovery was requested, <italic>held</italic>, this, as such, did not deny defendant a fair trial on charge of felony theft by receiving, particularly where the witness was later made known to defendant and timely objection was not made; moreover, record clearly reflects that defendant had prior knowledge of the witness' testimony.

1. <bold>WORKERS' COMPENSATION</bold> — <italic>Tips — Gratuities — Statute — Construction —</italic><italic>Unconstitutional</italic>. Construction of workmen's compensation statute (section<cross_reference>8-47-101</cross_reference>(2), C.R.S. 1973) — wherein supreme court stated that tips are gratuities within the meaning of the statute and, therefore, cannot be considered as wages in determining the average weekly wage and compensation benefits — is held to be unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment; overruling <italic>Industrial</italic><italic>Commission v. Lindvay</italic>, <cross_reference>94 Colo. 531</cross_reference>, <cross_reference>31 P.2d 495</cross_reference> (1934). 2. <bold>STATUTES</bold> — <italic>Definitive Judicial Construction — Reenacted — Presumption</italic>. When a statute has received a definitive judicial construction and has subsequently been reenacted in the same form by the legislature, it is presumed that the legislature acted in light of that prior judicial construction. 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Equal Protection Clause — Minimum — Distinction —</italic><italic>Similar Classes</italic>. The constitutional minimum under the Equal Protection Clause is that a distinction between ostensibly similar classes must be rationally related to a legitimate state objective. 4. <italic>Administrative Expediency — Sufficient Basis — Irrational Distinction</italic><italic>— Negative</italic>. Mere considerations of administrative expediency are not alone generally perceived as forming sufficient rational basis for an otherwise irrational distinction violative of equal protection guarantees.