Volume 193 — Colorado Reports

1. <bold>HABEAS CORPUS</bold> — <italic>Petition — Failure to Challenge — Sufficiency —</italic><italic>Extradition — Writ — Discharged</italic>. Where the issues before trial court, as defined by the petition for the writ of habeas corpus, did not properly challenge the sufficiency of the demand for extradition or the sufficiency of the documents supporting extradition, <italic>held</italic>, under these circumstances, the writ was properly discharged. 2. <bold>EXTRADITION</bold> — <italic>Governor's Warrant — Served — Illegality of Arrest —</italic><italic>Issues — Moot</italic>. Once a valid governor's warrant has been issued and served, issues relating to the illegality or irregularity of the arrest or initial detention become moot.

1. <bold>PROHIBITION</bold> — <italic>Court — Excess — Jurisdiction</italic>. Relief in the nature of prohibition is appropriate where the district court is proceeding without or in excess of its jurisdiction, or has abused its discretion. 2. <bold>MANDAMUS</bold> — <italic>Court — Abuse of Discretion — Damage — Appeal — Negative —</italic><italic>Rules</italic>. Where the damage that may result from the court's abuse of discretion cannot be cured on appeal, mandamus will lie to ensure observance of the rules of civil procedure. 3. <italic>Mental and Psychiatric Examination — Relief From Order</italic>. Original proceeding in the nature of mandamus was proper remedy for obtaining relief from order of district court that petitioner submit to mental and psychiatric examination. 4. <bold>DISCOVERY</bold> — <italic>Physical and Mental Examination — Rules</italic>. The notice provisions of C.R.C.P. 35(a) — governing physical and mental examination of persons — are mandatory and, absent proper notice, the court may refuse to order a physical or a mental examination. 5. <italic>Physical or Mental Examination — Rules — "In Controversy" — "Good</italic><italic>Cause</italic>." C.R.C.P. 35(a) authorizing court to order party to submit to physical or mental examination requires that either the party's physical or mental condition be "in controversy" and that the movant show "good cause" before the court may order that a party submit to a physical or mental examination.<page_number>Page 32</page_number> 6. <bold>MENTAL HEALTH</bold> — <italic>General Allegations — Mental Suffering — In Controversy</italic><italic>— Rules — Negative</italic>. A plaintiff's general allegations of mental suffering, mental anguish, emotional distress and the like, unsupported by expert testimony, do not place his mental condition in controversy under C.R.C.P. 35(a) authorizing court to order party to submit to mental or physical examination. 7. <bold>DAMAGES</bold> — <italic>General — Rule — Mental Examination — Present Condition in</italic><italic>Controversy — Negative</italic>. Under C.R.C.P. 35(a) authorizing court to order party to submit to mental examination, complaint seeking general damages for past mental suffering did not put petitioner's present mental condition in controversy. 8. <bold>DISCOVERY</bold> — <italic>Mental Examination — Condition — Credibility —</italic><italic>Controversy — — Negative</italic>. Within C.R.C.P. 35(a) — rule authorizing court to order party to submit to mental examination — the fact that litigant's mental condition may bear on his credibility as a witness does not place his mental condition in controversy.

1. <bold>FORGERY</bold> — <italic>Second Degree</italic>. Under section <cross_reference>18-5-103</cross_reference>(1)(a), C.R.S. 1973, a person commits second-degree forgery if, with intent to defraud, he falsely makes, completes, alters, or utters a written instrument which affects a legal right. 2. <italic>Intent to Defraud — Use — Fictitious Name — Gift Certificate —</italic><italic>Evidence</italic>. Defendant's intent to defraud is amply evidenced by his use of a fictitious name on gift certificates he allegedly used to purchase merchandise and groceries. 3. <italic>Pass — Instrument — Known to be False — Infer — Intent to Defraud</italic>. Where a defendant has passed an instrument he knows to be false, the factfinder may infer an intent to defraud, particularly if the defendant enjoyed the proceeds of the passing. 4. <italic>Money Order — Payee — Blank — Fills in Name — "Alteration" —</italic><italic>Statute</italic>. Where a defendant finds a valid money order with the payee space left blank, then fills in his own name and cashes it, his action constitutes "alteration" of the instrument for purposes of the forgery statute. 5. <italic>Insertion — Fictitious Name — Gift Certificates — Material</italic><italic>Alterations</italic>. Defendant's act of inserting fictitious name, without which gift certificates would not have been accepted, in the "For" blank on gift certificates constituted a material alteration within the meaning of the second-degree forgery statute. 6. <italic>Material Portion — Fictitious — Conviction</italic>. Where any material portion of the instrument, including a name or signature, is fictitious, a forgery conviction may be sustained. 7. <italic>Gift Certificates — Insertion — Fictitious Name — Affect — Legal</italic><italic>Right — Statute</italic>. Where store was obligated to deliver property of retail value equivalent to face value of certificates, gift certificates, on which defendant inserted a fictitious name in order to have certificates accepted by store, affected a legal right within the purview of the second-degree forgery statute. 8. <italic>Certificates — Delivery of Property — Instruments — Susceptible</italic>. Certificates for the delivery of property are instruments susceptible to forgery.<page_number>Page 121</page_number> 9. <bold>FALSE PRETENSES</bold> — <italic>Criminal Impersonation — Definition</italic>. Criminal impersonation is defined as assuming a false or fictitious identity or capacity, and in that identity or capacity, doing any act with intent to unlawfully gain a benefit or injure or defraud another. 10. <italic>False Identity — Gift Certificates — Act — Passing — Known to be</italic><italic>False</italic>. Defendant, who admitted assuming false identity when redeeming gift certificates thereby met first element of crime of criminal impersonation; he also met second element of criminal impersonation which is an act to gain a benefit or to defraud another, and this act requirement defendant also met when he passed the gift certificates in exchange for property, which certificates were falsified when a false name was written to facilitate their passing and which were known by defendant to be false as signed.

1. <bold>ZONING</bold> — <italic>"Accessory Use" — Failure to Consider — Live-in Home — Supreme</italic><italic>Court — Provision — Not Considered</italic>. Where city council did not consider the matter of "accessory use" when it adopted resolution permitting residence to be used as a live-in home for not to exceed six mentally retarded children, district court's conclusion in such respect was necessarily predicated upon de novo review, which was impermissible, and supreme court on appeal from district court would therefore not consider "accessory use" provision of the ordinance nor the effect. 2. <italic>"Family" — Ordinance — Married Couple — Six Retarded Children</italic>. A married couple and a maximum of six retarded children, for whom the couple are surrogate parents, constitute a "family" by right, under the provisions of Broomfield Zoning Ordinance No. 149, Article 26, Section 2(10).<page_number>Page 125</page_number> 3. <bold>CONSTITUTIONAL LAW</bold> — <italic>Issues — Not Raised in District Court — Not</italic><italic>Considered in Supreme Court</italic>. Constitutional issues not raised in the district court would not be considered on appeal in the supreme court.

1. <bold>VENUE</bold> — <italic>Proof</italic>. Venue must be proved as laid. 2. <italic>Right — Jury — County or District — Offense Committed — Constitution</italic>. The Colorado Constitution, Article II, Section 16, guarantees a defendant the right to a trial by an impartial jury of the county or district in which the offense is alleged to have been committed. 3. <italic>Burden of Proof — Prosecution</italic>. The burden is upon the prosecution to prove venue, and the question of venue, when raised, is an issue to be determined in the same manner as any other issue in the case.<page_number>Page 177</page_number> 4. <italic>Sale of LSD — Denver — Transaction — Proof — Jefferson County —</italic><italic>Negative — Acquittal</italic>. Where defendant made a face-to-face, hand-to-hand sale of LSD to an agent of the drug enforcement administration in the City and County of Denver, no part of the transaction was carried out in Jefferson County, and nothing was offered which would tie defendant to any act in furtherance of the offense in Jefferson County, <italic>held</italic>, under the circumstances, venue in Jefferson County was not proved and defendant was therefore properly acquitted at close of prosecution's case.

1. <bold>ANNEXATION</bold> — <italic>Challenge — Forty-Five-Day Period — Jurisdictional</italic>. Forty-five-day period after effective date of ordinance for bringing an action to challenge annexation is jurisdictional, and a complaint filed more than 45 days after effective date of annexation ordinance must be dismissed. 2. <italic>Ordinance — Erroneous Description — Filing Period — Challenge — Did</italic><italic>Not Begin to Run — Review — Timely</italic>. Where annexation ordinance contained an erroneous property description, forty-five-day filing period within which to challenge ordinance did not begin to run from effective date of that ordinance; the ordinance, because of erroneous legal description was ineffective as to the challengers; application for review within forty-five days after subsequent enactment of another ordinance purporting to correct legal description was timely. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Boundaries — Description — Indefinite —</italic><italic>Uncertain — Invalid</italic>. The description of municipal boundaries or of municipal territory is invalid and ineffective where it is indefinite and uncertain. 4. <bold>ANNEXATION</bold> — <italic>Contest — Joinder — All Landowners — Unnecessary</italic>. In a suit contesting annexation, it was not necessary to join all landowners.

1. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Lesser Included Offense</italic>. A lesser included offense exists when the statute creating the greater offense establishes <italic>all</italic> essential elements of the lesser offense. 2. <italic>Criminal Mischief — Lesser Included — Burglary — Negative</italic>. Criminal mischief is not a lesser included burglary offense because the elements are far different; while criminal mischief requires damage to property, burglary does not. 3. <bold>MALICIOUS MISCHIEF</bold> — <italic>Criminal — Statute — Malice — Not an Element</italic>. There is no legislative indication that criminal mischief statute means anything other than what its plain words express — that malice is not an element of the offense; particularly, in view of fact that malicious mischief statute uses the word "intentionally" and omits the words "willful and malicious," which are found in prior statute. 4. <bold>STATUTES</bold> — <italic>Specific Intent — Prescribes — General Assembly —</italic><italic>Substitution — Prohibited</italic>. When the General Assembly prescribes a specific intent necessary to commit a crime, courts cannot substitute a different intent. 5. <bold>CRIMINAL MISCHIEF</bold> — <italic>Value — Essential Element</italic>. Value is an essential element of felony criminal mischief; and unless the property damaged has an aggregate value of one hundred dollars or more, there is no felony offense. 6. <bold>CRIMINAL PROCEDURE</bold> — <italic>Preliminary Hearing — Probable Cause — No Findings</italic><italic>— Correct — Law — Error</italic>. The preliminary hearing, under Crim. P. 7(h), is not a mini-trial, but is a meeting to determine whether there is probable cause that a crime has been committed and that the defendant committed it; hence, trial court correctly made no findings of fact, but simply applied the law to the prosecution's case, albeit erroneously.<page_number>Page 381</page_number>

1. <bold>THEFT</bold> — <italic>Attempt — Credit Cards — Valuation — "Street Value" — "Asking</italic><italic>Price" — Admissible</italic>. In prosecution for attempt to commit felony theft of fourteen credit cards based on defendant's offering to return lost credit cards if owner would pay defendant $1000, trial court did not err in admitting prosecution's valuation evidence based on "street value"; moreover, in considering issue of credit cards' value, evidence of defendant's "asking price" of $1000 could be admitted on the issue of value. 2. <bold>CRIMINAL EVIDENCE</bold> — <italic>Lack of Legal Market — Illegal Market — Other —</italic><italic>Considered</italic>. Where there is no legal market, evidence of the illegal market price and other objective evidence may be considered for purposes of theft prosecution. 3. <italic>Credit Card — Stolen — Lack of Legal Market — Objective Value —</italic><italic>"Illegitimate" — Admissible</italic>. Where the stolen item, such as a credit card, has no legal market value, other objective evidence of value may be admitted, including evidence of "illegitimate" market value. 4. <bold>THEFT</bold> — <italic>Credit Card — Dollar Amount — Objective — Means — Evaluate —</italic><italic>Illegitimate Market — Value</italic>. Evidence of the dollar amount which may be purchased by using the credit card without card company approval provides an objective means of evaluating the illegitimate market value of credit cards, in prosecution for attempt to commit felony theft based on defendant's telephoning owner of lost credit cards to state that she would return cards if owner paid her $1000.<page_number>Page 416</page_number> 5. <italic>Attempt — Lost Credit Cards — Evidence — Authorization-Free Purchase</italic><italic>Limit</italic>. In prosecution for attempt to commit felony theft based on defendant's telephoning owner of lost credit cards to state that if he would pay her $1000, defendant would return the cards, trial court did not err in permitting evidence of the $100 authorization-free purchase limit.

1. <bold>ASSAULT AND BATTERY</bold> — <italic>Laceration of Eye — Sufficiency of Evidence —</italic><italic>Guilt</italic>. In prosecution for assault in the first degree, evidence supports the conclusion that the defendant inflicted the damaging blow to the victim — severely lacerating her eye — at a time when the fighting between them had ceased; and this fact and the other evidence presented, when viewed in the light most favorable to the jury's verdict, was sufficient to support a verdict of guilt. 2. <bold>CRIMINAL LAW</bold> — <italic>Statute — Different Degrees — Punishment — Like</italic><italic>Circumstances — Violative — Equal Protection</italic>. A statute which prescribes different degrees of punishment under like circumstances by persons in like situations is violative of a person's right to equal protection of the laws. 3. <bold>ASSAULT AND BATTERY</bold> — <italic>First Degree — Second Degree — Injury — Identical</italic><italic>— Violative — Equal Protection</italic>. Since the first-degree assault statute (section <cross_reference>18-3-202</cross_reference>, C.R.S. 1973) defines the type of injury sustained by the victim in terms substantially identical to those in the second-degree assault statute (section <cross_reference>18-3-203</cross_reference>, C.R.S. 1973) it is violative of a person's right to equal protection of the laws. 4. <italic>First and Second — Same Elements — Second Degree — Proven —</italic><italic>Resentencing</italic>. Where crime described in both sections of the statutes (first and second-degree assault) in instant case consist of exactly the same<page_number>Page 469</page_number> elements, and all the elements of the lesser included offense of second-degree assault were proven by competent evidence and upon this the jury entered a finding of guilty, <italic>held</italic>, under such circumstances a retrial is unnecessary; therefore, judgment of conviction of first-degree assault is to be vacated, judgment of conviction on second-degree assault is to be entered and defendant is to be resentenced accordingly.

1. <bold>TOWNS AND CITIES</bold> — <italic>Ordinances — Exceeded — Abuse — Refusal to Grant</italic><italic>Variance — Drainage</italic>. City exceeded the authority of its ordinances and abused its discretion in refusing to grant a variance from the city engineer's determination that developer should pay for a major drainage improvement from which its property would benefit only slightly. 2. <italic>Home Rule — Police Power — Ordinances — Alleviate — Water Drainage</italic><italic>Problems</italic>. The police power authorizes home rule cities to pass ordinances to alleviate local problems involving urban areas which face severe water drainage problems due to their vast areas of impermeable surface. 3. <italic>Ordinances — Collect Funds — Drainage Facilities — Plat Approval —</italic><italic>Developer — Bear Entire Cost — Negative</italic>. Although ordinances authorize city to collect funds for construction of drainage facilities from subdevelopers as a condition of plat approval, nevertheless, no language in the ordinances requires a developer, under the facts in instant case, to bear the entire cost of improving existing facilities or constructing new facilities which serve an area far greater than the subdivision.<page_number>Page 544</page_number> 4. <italic>Variance — Refusal by City — Abuse of Discretion — Ordinance</italic>. Where city refused to allow a variance from the city engineer's designation of point "C" — which is a considerable distance from the platted subdivision — although such variance was sought and is permitted under Section 13-36, <italic>held</italic>, in so refusing city abused its discretion. 5. <bold>WORDS AND PHRASES</bold> — <italic>Undue Hardship — Defined</italic>. Undue hardship has been defined as unnecessary or unjust hardship. 6. <bold>TOWNS AND CITIES</bold> — <italic>Variance — Refusal — Undue Hardship — Unjust —</italic><italic>Assessment — Unfair</italic>. Where city refused to grant a variance from the city engineer's determination that developer should pay for a major drainage improvement from which its property would benefit only slightly, <italic>held</italic>, as such, city's interpretation caused developer an undue hardship which was also unjust, unnecessary, and could be remedied by granting a variance as allowed by ordinance; the assessment of the entire cost of the major drainage channel upon developer was obviously unfair under facts of instant case.

1. <bold>EMINENT DOMAIN</bold> — <italic>Capitalization of Income — Use — Proper — Admissible</italic>. The capitalization of income approach is admissible and may be used to determine the value of owner-occupied property in eminent domain proceedings; and income from a lease may be utilized by an owner to support his opinion as to value. 2. <italic>Opinions — Value — Method</italic>. Opinions as to the value of real property, whether based upon the comparable sales approach, the capitalization of income approach, or the reproduction costs, less depreciation, all are intended to provide an owner or an expert with a method at arriving at the fair, actual cash market value of the property to be condemned. 3. <italic>Market Data — Comparable Sales — Best Evidence — Value</italic>. Market data or the comparable sales approach generally provides the best evidence of value. 4. <italic>Capitalization of Income Approach — Value — Real Property — Use</italic>. The capitalization of income approach as to the value of real property in an eminent domain proceeding is utilized by appraisers to formulate an opinion as to value which reflects the value of the net income generated by the property during the remainder of its productive life. 5. <italic>Fair Market Value</italic>. To arrive at the fair market value in an eminent domain proceeding, the net operating income — economic rent less operating expense — should be capitalized at a rate of return which is anticipated for similar properties. 6. <italic>Factors — Weight — Income Approach</italic>. In an eminent domain proceeding, many factors enter into the weight which is to be given the income approach: inflation, prime interest rate, availability of similar property for rental purposes, as well as cost of operating and maintaining similar property for rental purposes.<page_number>Page 563</page_number> 7. <italic>Capitalization of Income Approach — Owner Occupied Property —</italic><italic>Expert — Factors</italic>. The capitalization of income approach to determine the value of owner-occupied property in eminent domain proceedings depends upon the expert employing an estimate not only as to rental value, but as to deductions and as to the rate of return on such an investment over a long period of time. 8. <italic>Capitalization of Income — Use — Allowed — Other Methods of Appraisal</italic><italic>— Available</italic>. The use of the capitalization of income approach will be allowed even if other methods of appraisal are available. 9. <bold>EVIDENCE</bold> — <italic>Opinion — Value</italic>. Opinion evidence as to value requires that the unique and different characteristics of every individual piece of property be analyzed for its comparability to other property that bears comparable characteristics. 10. <bold>EMINENT DOMAIN</bold> — <italic>Fair Valuation — Relevant Factors — Recognition</italic>. Recognition should be given to all relevant factors which tend to provide a means for arriving at a fair valuation in eminent domain proceedings. 11. <bold>WITNESSES</bold> — <italic>Expert — Value — Trier of Fact — Duty — Weigh — Judge —</italic><italic>Credibility</italic>. The trier of fact has the duty to weigh the opinion and judge the credibility of an expert on value to determine which of the three approaches is most indicative of the actual market value of the property to be condemned. 12. <bold>EMINENT DOMAIN</bold> — <italic>Business Profit Rule — Foundation</italic>. The business profit rule, in an eminent domain proceeding, requires the exclusion of business profits generated by an enterprise on the property. 13. <italic>Business Profit Rule</italic>. Under the business profit rule, evidence of the character and volume of business conducted on the premises is admissible only for the purpose of showing a use to which the land could be put. 14. <italic>Fair Economic Rental Value — Evidence — Profit — Land — Admissible</italic>. The fair economic rental value of commercial property is also evidence of "profit derived from the land itself" and is therefore admissible as a determinant of value in conjunction with the income approach. 15. <italic>Value — Economic Rent — Income — Admissible — Competent</italic>. Although the value of economic rent, as evidence of income derived from land, is admissible in eminent domain cases, such evidence still must be competent under the rules of evidence. 16. <bold>WITNESSES</bold> — <italic>Expert — Economic Rent — Admissible — Part Hearsay —</italic><italic>Limited Purpose — Inadmissible — Substantive</italic>. An expert's opinion of economic rent is admissible although based in part on hearsay; but this evidence of economic rent is admissible only for the limited purpose of establishing the basis for the expert's final opinion of value; it is inadmissible as substantive evidence: it cannot be offered to establish the truth of the matter it asserts. 17. <bold>EMINENT DOMAIN</bold> — <italic>Expert — Value — Income Approach — Part Hearsay —</italic><italic>Proper</italic>. An expert, in an eminent domain proceeding, can express an opinion of value calculated under the income approach even though based in part on hearsay as to comparable rentals.<page_number>Page 564</page_number> 18. <bold>WITNESSES</bold> — <italic>Expert — Properly Qualified</italic>. Before a witness can express an opinion he must be properly qualified as an expert, and a foundation must be laid to establish a basis to conclude that he has the means and ability to form an intelligent opinion. 19. <italic>Expert — Economic Rent — Value — Income Approach — Refusal —</italic><italic>Offered — Subsequent Cross-Examination</italic>. Although the trial commission erred in refusing to permit an expert witness to express his opinions of fair economic rent and value under the income approach, nevertheless, no reversible error existed where the witness was allowed to describe that approach in detail and was permitted to offer his opinion of value under the income approach in the course of his subsequent cross-examination. 20. <italic>Property Owner — Testify — Value</italic>. A property owner may testify as to his opinion of value. 21. <italic>Officer — Corporation — Express Opinion — Value — Corporate</italic><italic>Property</italic>. When a person is an officer of a corporation and also the majority or controlling stockholder, he is, without further qualification, competent to express an opinion as to the value of his corporation's property. 22. <bold>EMINENT DOMAIN</bold> — <italic>Property Owner — Testify — Depreciation — Market</italic><italic>Value</italic>. A property owner can testify to his opinion of the depreciation in market value of his property caused by eminent domain taking; his opinion is admissible solely to establish a basis for his opinion and is inadmissible as substantive evidence.