Volume 198 — Colorado Reports

1. <bold>TAXATION</bold> — <italic>Uniformity Clause — Constitution Inapplicable — Excise Tax —</italic><italic>Privileges.</italic> The uniformity clause in Article X, section 3 of the Colorado Constitution refers solely to a direct or ad valorem tax upon property and does not apply to an excise tax imposed on privileges and occupations. 2. <bold>THEATERS AND SHOWS</bold> — <italic>Admission's Tax — Without Assessment — Privilege —</italic><italic>Taxpayer — Excise Tax — Not Subject to Constitutional Restriction.</italic> The home rule city's admissions tax on admissions to public places and events is levied directly by the city, without assessment, and is measured by the extent a privilege is exercised by the taxpayer without regard to the nature or value of his assets. As such, it constitutes an excise tax and not an ad valorem tax and is therefore not subject to the constitution restriction of Article X of section 3. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Home Rule City — Levy — Excise Tax — Privilege</italic><italic>— Constitution.</italic> A home rule city is authorized by Article XX, section 6 of the Colorado Constitution to levy an excise tax on a privilege within the city limits.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Requisition — Charge — Aggravated Robbery —</italic><italic>Accompanying Indictment — Previous Burglary Conviction — Statute —</italic><italic>Compliance — Probable Cause.</italic> Where requisition of Governor of Texas states that fugitive is charged with crime of "aggravated robbery by deadly weapon — enhanced bond forfeiture," and accompanying indictment charges fugitive with "aggravated robbery — enhanced" and also states that he was previously convicted of burglary, <italic>held</italic>, under section <cross_reference>16-19-104</cross_reference>, C.R.S. 1973, the statutory requirements have been met; the requisition documents indicate that an alleged crime is the basis for extradition rather than the also-mentioned burglary conviction, thus, the documents need not include an authenticated copy of his prior conviction. 2. <italic>Indictment — Texas — Probable Cause — Citation — Immaterial.</italic> Indictment accompanying Texas Governor's extradition requisition sufficed to establish probable cause to believe that fugitive committed crime in Texas even though it did not include a statutory citation for the crime of aggravated robbery; lack of citation was an immaterial technicality.

1. <bold>LICENSES</bold> — <italic>Massage Parlors — "More Stringent Standards" — Failure to</italic><italic>Define — Due Process — Deprivation.</italic> Although local governments may adopt "more stringent standards" for licensing massage parlors than the minimum standards set forth by state statute, such higher standards must be adequately defined; in instant case, the Board applied more stringent standards than those contemplated by the Code, but, in doing so, it failed to define those standards adequately, thus depriving the parlor of due process of law. 2. <italic>Massage Parlor — "Reasonable Requirements of the Neighborhood" —</italic><italic>Defining — Fair Notice — Due Process.</italic> While the Board may apply a more stringent definition of the phrase "reasonable requirements of the neighborhood" than that required by the Code, it may not do so without clearly defining the phrase and giving fair notice of what evidence it will consider in determining whether its requirements have been met insofar as granting a massage parlor license; procedural due process requires no less. 3. <italic>Board — Standards — Judging — Applicant's Character and Reputation.</italic> A licensing board must set forth its standards for judging a license applicant's character and reputation. Failure to announce clear guidelines in advance of a hearing denies an applicant fair notice of the board's criteria and denies a fair basis for an appeal of the board's decision. Terms must be defined to provide safeguards against arbitrary, capricious or whimsical administrative action. 4. <bold>CONSTITUTIONAL LAW</bold> — <italic>Statute — Constitutional Challenge — Attorney</italic><italic>General — Must Be Given Notice — Massage Parlor — Refusal to Determine —</italic><italic>Facial Constitutionality.</italic> When a statute's constitutionality is challenged by a party seeking declaratory relief, the Attorney General of Colorado must be given notice; here, in instant case, the Attorney General was not named as a party in the district court action, served with any pleadings,<page_number>Page 176</page_number> or given an opportunity to be heard; therefore, reviewing court declines to determine the facial constitutionality issue raised by plaintiff-appellee, the massage parlor.

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Rebuttal Argument — Inference of Guilt —</italic><italic>Post-Arrest Silence — Violation — Fair Trial — Constitution.</italic> Where prosecuting attorney — after defense counsel emphasized to the jury that the totality of circumstances refuted any intent to steal — concluded that defense counsel had "opened the door" to rebuttal argument that an inference of guilt should be drawn from the incompleteness of defendant's explanation regarding his conduct with reference to tools removed from the pickup truck, <italic>held</italic>, under the circumstances, the prosecutor's initial and rebuttal references to the defendant's post-arrest silence violated his constitutional right to a fair trial implicit in the guarantee of due process and abridged his constitutional privilege against self-incrimination. 2. <bold>APPEAL AND ERROR</bold> — <italic>Prejudicial Remarks — Fifth Amendment — Due</italic><italic>Process — — Improper Comment by District Attorney — Motion for New Trial</italic><italic>— Plain Error.</italic> Even though initially the defendant did not interpose any objection to the district attorney's prejudicial remarks based on his Fifth Amendment or due process rights nor raise the issue of improper comment in his motion for new trial, nevertheless, since the error was so egregious that it seriously prejudiced the most fundamental guarantee of our justice system, the right to a fair trial; it was, therefore, plain error. 3. <bold>CRIMINAL LAW</bold> — <italic>Right to Remain Silent.</italic> Every person accused of a crime has the right to remain silent in the face of criminal accusation. 4. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Comment — Inference of Guilt — Silence —</italic><italic>Penalize — Constitutional Privilege.</italic> Prosecutorial comment designed to create an inference of guilt by reference to defendant's silence during custodial interrogation effectively penalizes defendant for exercising a constitutional privilege. 5. <bold>TRIAL</bold> — <italic>Fair — Denial — Would Not Be Countenanced.</italic> While courts may often fall short of providing perfect trials, and may even tolerate imperfections which do not result in denying a fair trial, yet, denial of a fair trial for any litigant would not be countenanced. 6. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Comments — Failure to Protect Innocence —</italic><italic>Violation — Constitutions — Deprived of Fair Trial — New Trial.</italic> Where<page_number>Page 180</page_number> prosecutor's comments expressly directed jury to consider, as evidence of defendant's guilt, his failure to protest his innocence or to offer an exculpatory statement, he manifestly violated the protections assured by the Fifth and Fourteenth Amendments to the federal and state constitutions; thus, defendant, in instant case, was deprived of a fair trial by the prosecutor's utilizing his "silence as a means of creating an inference of guilt"; accordingly, and under these circumstances, a new trial must be granted. 7. <bold>CRIMINAL LAW</bold> — <italic>Waiver — Right to Remain Silent — Revoke Earlier Waiver.</italic> Even a defendant who knowingly, intelligently and voluntarily waives his right to remain silent as to some questions, is not deprived of his right to refrain from answering additional questions; a defendant's later silence may result from revoking his earlier waiver and reasserting his right to remain silent. 8. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Avoid Comments — Penalize Defendant — Right to</italic><italic>Remain Silent.</italic> Although a prosecutor, in closing argument, is entitled to rebut or explain adverse inferences suggested by the defense, a prosecutor must avoid comments that might penalize the defendant for having exercised his privilege against self-incrimination.

1. <bold>ARREST</bold> — <italic>Warrantless — Authorized — Officer — Information — Sufficient</italic><italic>— Belief — Offense — Committed.</italic> A warrantless arrest is authorized if the information possessed by the arresting officer is sufficient to warrant a reasonably cautious and prudent police officer in believing, in light of his training and experience, that an offense has been committed and that the person arrested committed it. 2. <italic>Automobile — Used in Assault — Green and White — Description of Male</italic><italic>— Probable Cause — Flight — Suppression — Error.</italic> Where arresting officers had reliable information from a fellow officer, who had been the victim of an assault, that automobile used in commission of offense was a green and white Cadillac with license plates of either North or South Dakota; had descriptions of two assailants; and in their search encountered a lone male person, approaching from reported location of car, who answered general description given by fellow officer, <italic>held</italic>, under these circumstances, officers had probable cause to arrest defendant without a warrant, especially so, in view of flight of defendant and his confederate from scene of crime and the exigent circumstances then existing; since arrest was lawful, it was error to grant motion to suppress.

1. <bold>ASSAULT AND BATTERY</bold> — <italic>Police Officer — Court — Interpretation —</italic><italic>Statutes — Question of Law — Review — Proper.</italic> In assault prosecution on a police officer, where district court based its ruling upon interpretation of relevant statutes, <italic>held</italic>, this, as such, was obviously a question of law; thus, defendant's claim — that review is not appropriate because defendant may not be retried and because case presents no question of law in view of trial court's ruling upon a question concerning sufficiency of evidence — is without merit. 2. <bold>OFFICERS</bold> — <italic>Peace — Authority — Performance — Service — Permitted by Law</italic><italic>— Not Limited by Status.</italic> Authority for the performance of the duty, service or function <italic>permitted by law</italic> by a peace officer is not limited by the person's status as an <italic>on-duty</italic> peace officer. 3. <italic>Attempted Arrest — Crime in his Presence — Off Duty Officer —</italic><italic>Dismissal — Error.</italic> Where district court ruled that uniformed officer was not engaged in the performance of his duties because he was off duty and outside his territorial jurisdiction when he was shot while attempting to arrest a person committing a crime in his presence, <italic>held</italic>, as such, district court erred in dismissing the first-degree assault charge against defendant; actually, officer attempted to perform a law enforcement function, <italic>viz.</italic>, to arrest someone committing a crime; thus, officer came within statutory condition since he was attempting to make an arrest permitted by law and while engaging in the performance of his duties.<page_number>Page 226</page_number>

1. <bold>STATUTES</bold> — <italic>Tenets of Construction.</italic> Three fundamental tenets of statutory construction relating to sections <cross_reference>12-36-117</cross_reference> and 118, C.R.S. 1973 are as follows: first, statutory interpretation must be governed by legislative intent; second, if a statute is susceptible of both constitutional and unconstitutional interpretations, the court will construe it to avoid constitutional infirmities; third, statutory provisions <italic>in pari materia</italic> must be construed to be in context with each other. 2. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>"Unprofessional Conduct" — "Misconduct" —</italic><italic>Terms — Equivalent — Statutes.</italic> "Unprofessional conduct," as that term is used in section <cross_reference>12-36-117</cross_reference>, C.R.S. 1973, is the equivalent of "misconduct," as that term is used in section 118; thus, doctor's argument — that sections 117 and 118 are unconstitutional because it cannot be presumed that unprofessional conduct is the same as misconduct — is without merit. 3. <bold>LIMITATION OF ACTIONS</bold> — <italic>General Statute of Limitations — Applies —</italic><italic>Commencement of Legal Actions.</italic> Section <cross_reference>13-80-108</cross_reference>, C.R.S. 1973, sets forth the general statute of limitations and applies to the commencement of legal actions, not to the consideration of evidence in a professional disciplinary proceeding. 4. <italic>Statute of Limitations — Purpose.</italic> The purpose of a statute of limitations is to promote justice, discourage unnecessary delay and forestall the prosecution of stale claims. 5. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>Statute of Limitations — Inapplicable —</italic><italic>Revocation of License.</italic> The general statute of limitations in section<cross_reference>13-80-108</cross_reference>, C.R.S. 1973, does not apply to the consideration of doctor's felony conviction in instant administrative proceeding, which involves revocation of license to practice medicine as an osteopathic physician. 6. <italic>Prior Felony Conviction — Insufficient — Pertinent Circumstances —</italic><italic>Must Be Considered.</italic> A prior felony conviction — standing by itself — is not sufficient to warrant denial or revocation of a physician's license; rather, pertinent circumstances must be considered to determine the moral character of the applicant or licensee.<page_number>Page 276</page_number> 7. <italic>Hearings Panel — Three Members — Revocation of License — Not</italic><italic>Invalidated.</italic> The fact that the hearings panel of State Board of Medical Examiners was comprised of only three members did not invalidate its revocation of physician's license. 8. <bold>STATUTES</bold> — <italic>Pari Materia — Governing Provisions — Procedures — Construed</italic><italic>Consistently.</italic> The statute setting forth the general governing provisions of the State Board of Medical Examiners and the statute providing the procedures to be followed by the Board in disciplinary proceedings are <italic>in</italic><italic>pari materia</italic> and must be construed consistently, if possible. 9. <italic>Repeal by Implication — Disfavored.</italic> Repeal of a statutory provision by implication is disfavored in Colorado. 10. <italic>Two Provisions — Harmonious Construction — Adopted.</italic> If two provisions can be construed to avoid an inconsistency, such a harmonious construction will be adopted. 11. <italic>Repeal by Implication.</italic> The doctrine of repeal by implication does exist for those unique circumstances in which the legislature evinces its intent to alter a prior statute by the subsequent passage of a clearly contradictory provision. 12. <bold>PHYSICIANS AND SURGEONS</bold> — <italic>License — Granting — Suspending — Revoking —</italic><italic>Vote of Four Members — Not Required — Revocation — Proper.</italic> Granting, suspending, or revoking of a medical license does not require an affirmative vote of four members of the State Board of Medical Examiners; accordingly, the Board acted in accord with established constitutional and statutory principles in revoking physician's license.

1. <bold>WATER RIGHTS</bold> — <italic>Underground Water — Not Tributary — Failure to Find —</italic><italic>Flow of Creek — Issue — Pumping — Affect — Stream — Flow — Finding.</italic> In action arising from six applications in water court for adjudication of rights in underground water, where water judge ruled as a matter of law that the waters were not tributary and in his findings of fact observed that, in the testimony, there was "presented a sharp conflict as to whether the pumping of the wells involved herein affected the flow of Monument Creek," <italic>held</italic>, since water court did not find whether or not the pumping of wells <italic>affected the flow of the creek</italic>, reviewing court holds that issue before trial court must embrace that question, <italic>i.e.</italic>, Did the pumping affect the stream flow?; accordingly and prior to any final determination, there must be such a finding. 2. <italic>Adjudication — Fundamental Consideration — Time — Wells — Affect —</italic><italic>Surface Stream.</italic> In adjudicating water rights, the fundamental consideration is the length of time in which use of the wells will affect the surface stream, not necessarily limited to a consideration of the length of time in which the water, upon being left undisturbed, would reach the stream.

1. <bold>EXTRADITION</bold> — <italic>Probable Cause — Determination — Demanding State —</italic><italic>Binding — Courts of Asylum State.</italic> The determination of probable cause by a neutral judicial officer of the demanding state is binding upon the courts of the asylum state. 2. <italic>Probable Cause — Kansas — Judicial Determination — Binding —</italic><italic>Colorado.</italic> Where Kansas arrest warrant transmitted with other extradition documents contained a judicial determination of probable cause, <italic>held</italic>, as such, probable cause was established and is binding on the Colorado courts. 3. <italic>Identity — Documents — Support in Record — Elements of Offense —</italic><italic>Need Not Be Proven.</italic> The elements of the offense charged need not be proven at the extradition hearing to establish the identity of the person sought to be extradited; thus, there was ample support in the record for trial court's finding that the extradition documents establish petitioner's identity as the person sought under the extradition warrant. 4. <italic>Hearing — No Determination — Guilt or Innocence — Procedural</italic><italic>Protections — Trial — Negative.</italic> Since the extradition hearing is not designed to determine the guilt or innocence of the accused and is summary in nature, the accused is not entitled to all of the procedural protections of a criminal trial; moreover, the responsibility for a full and fair trial on the merits rests on the demanding state; thus, trial court properly denied accused's motion to conduct a suppression hearing.

1. <bold>INSTRUCTIONS, CIVIL</bold> — <italic>"Contemporaneous Instruction" Rule — Purpose.</italic> The "contemporaneous objection" rule has a salutary purpose in the orderly administration of justice; its principle is to enable trial judges to clarify or correct misleading or erroneous instructions before they are given to the jury, and thereby prevent costly retrials necessitated by obvious and prejudicial error. 2. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Rule Restriction on Parties — Justice — Not</italic><italic>Bar To Court.</italic> The fundamental basis of C.R.C.P. 51 is to serve as a restriction on <italic>parties</italic> — not upon the court — to an action both by requiring assistance in the orderly administration of justice and by preventing a miscarriage of justice; it is not a bar to the court where the trial judge is attempting to secure substantial justice. 3. <bold>NEW TRIAL</bold> — <italic>Rule — Restriction.</italic> C.R.C.P. 51 only restricts <italic>parties</italic> in seeking a new trial; it does not apply to the trial court when it <italic>sua</italic><italic>sponte</italic> grants a new trial. 4. <italic>Contemporaneous Objection — Purposes — Not Violated — Action of</italic><italic>Trial Court.</italic> The purposes of the contemporaneous objection requirement of C.R.C.P. 51 are not violated when the trial court acts on its own initiative. 5. <italic>Grounds — Rule.</italic> The grounds for which a new trial may be ordered are set forth in C.R.C.P. 59(a); and such grounds are the basis for a new trial both upon motion of the parties or by the trial court upon its own initiative. 6. <italic>Granted — Basis — Prevention of Fair Trial.</italic> C.R.C.P. 59(a)(1) provides that a new trial may be granted on the basis of any irregularity in the proceedings by which a party was prevented from having a fair trial. 7. <italic>Discretion of Trial Judge.</italic> Whether or not a new trial is granted is usually a matter for the sound discretion of the trial judge whose presence and observation at the trial better equip him for making this decision.<page_number>Page 345</page_number> 8. <italic>Sua Sponte — Sound Discretion — Substantial Justice — Notwithstanding</italic><italic>— Failure of Contemporaneous Objection.</italic> A trial court may <italic>sua sponte</italic>, in the exercise of its sound discretion and in order to accomplish substantial justice, order a new trial on the basis of erroneous or improper jury instructions, notwithstanding counsel's failure to make a contemporaneous objection to such erroneous or improper jury instructions.

1. <bold>INFANTS</bold> — <italic>Abused Child — Order — Removal of Life Supporting Devices</italic><italic>— Jurisdiction — Statute — Proper.</italic> Where respondent district court, acting as a juvenile court, issued an order directing the guardians ad litem of a grossly physically abused child to execute a signed document authorizing the treating physician of the child and the hospital involved to remove all life support devices if in the doctor's opinion the child was legally dead — — as defined by the court — by virtue of complete lack of brain function, which was so determined by competent medical authority, <italic>held</italic>, under these circumstances, the court did have jurisdiction and its action was proper under the Children's Code (sections <cross_reference>19-1-101</cross_reference>, <italic>et seq.</italic>, C.R.S. 1973). 2. <italic>General Assembly — Juvenile Court — Exclusive Jurisdiction —</italic><italic>Statute.</italic> The General Assembly, under section <cross_reference>19-1-104</cross_reference>, C.R.S. 1973, gave to the juvenile court exclusive jurisdiction over any child in need of supervision or who is neglected or dependent, to determine the legal custody of a child, to appoint a guardian or custodian of such a child, and to issue temporary orders providing for medical or surgical treatment as the court deems is in the best interests of a child under its jurisdiction; and facts in instant case exemplify a set of circumstances contemplated by the General Assembly when it enacted the Children's Code and provided for juvenile court jurisdiction. 3. <italic>Physical Abuse — Court Order — Temporary Custody — Social Services —</italic><italic>Proper.</italic> Where mother was arrested for alleged physical abuse of child and county Department of Social Services conducted a preliminary investigation of the family situation which resulted in the Department's filing a report and request for a court order allowing the filing of a petition in dependency or neglect, for temporary custody, protective orders and the appointment of a guardian ad litem for the child, <italic>held</italic>, under the<page_number>Page 420</page_number> circumstances, the court properly ordered custody of child be taken from mother and given to the Department of Social Services; there were no constitutional or statutory violations arising from the court's action. 4. <bold>COMMON LAW</bold> — <italic>Adoption — Reasonable — Application — Needs of Colorado.</italic> The statutory adoption of the common law of England is limited to the extent that it is reasonable to apply the English common law to the needs and conditions of Colorado; conceivably, therefore, the common law might be interpreted broadly enough to include permanent cessation of brain functions as one of the definitions of death, since one of the common law definitions of death was "cessation of life." 5. <bold>DEATH</bold> — <italic>Brain Death Concept — Unanimous View.</italic> The all but unanimous view endorses the concept of brain death. 6. <italic>"Brain Death" — Model — American Bar Association — Approval.</italic> The following "brain death" model — "For all legal purposes, a human body with irreversible cessation of total brain functions, according to the usual and customary standards of medical practice, shall be considered dead" — was approved by the American Bar Association in 1975. 7. <italic>Former View — Sauers v. Stolz — Overruled — Brain Death — Present Day</italic><italic>View.</italic> At the time of the decision of the supreme court in the case of<italic>Sauers v. Stolz</italic>, <cross_reference>121 Colo. 456</cross_reference>, <cross_reference>218 P.2d 741</cross_reference> (1950), medical knowledge supported the belief that life persisted as long as the heart beat, however, present day scientific knowledge requires the conclusion that a person may well be dead notwithstanding the fact that the heart temporarily continues to pump blood throughout the body, or that the lungs are forced by a mechanical respirator to expand and contract as oxygen is intermittently pushed into them; this was not known at the time of, and was certainly not in evidence in the <italic>Sauers</italic> case; accordingly, to the extent that that opinion negates the concept of brain death, it is overruled. 8. <italic>Brain Death — Uniform Act — Adopted — Rule of Instant Case.</italic> As the rule of instant case and that to be followed until otherwise changed legislatively or judicially, the supreme court adopts the provisions of the proposed Uniform Act which reads as follows: "For legal and medical purposes, an individual who has sustained irreversible cessation of all functioning of the brain, including the brain stem, is dead. A determination under this section must be made in accordance with reasonable medical standards. 9. <italic>Determination — Traditional Criteria — Irreversible Cessation —</italic><italic>Respiration and Circulation — Brain Function.</italic> For legal and medical purposes, death is determined by either the traditional criteria of irreversible cessation of respiration and circulation or by irreversible cessation of all functioning of the brain, including the brain stem. 10. <bold>INFANTS</bold> — <italic>Brain Death — Removal of Life Support Devices — Proper.</italic> In a proceeding to determine whether all life support devices were to be removed from a child, juvenile court's order for removal of the devices was proper on the basis of physicians' diagnosis that the child had suffered brain death; moreover, under the facts in instant case, the action of the respondent court could be approved by using any of the modern criteria of brain death as set forth in instant opinion.<page_number>Page 421</page_number>

1. <bold>ATTORNEYS AT LAW</bold> — <italic>Failure to Account and Pay — Failure to Perform</italic><italic>Legal Services — Violations — Rules — Suspension.</italic> Where attorney-respondent admitted the allegations contained in two formal complaints, namely: that he failed to account and pay over funds which he had obtained for one client, and that he collected substantial fees from other clients and failed to perform any legal service, and where he has admitted that such conduct is contrary to the provisions of DR1-102(A)(4), (5) and (6), DR6-101(A)(3), and DR9-102(B)(3) and (4), and has also admitted violations of DR2-110(A)(2) and DR7-101(A)(3), <italic>held</italic>, since these offenses admitted by respondent are contrary to the high standards of honesty, justice and morality expected of lawyers and since respondent's offer to surrender his license and to not seek to be readmitted to the Bar for a period of eight years is accepted by the Court, the respondent is accordingly suspended.

1. <bold>COURTS</bold> — <italic>Defend — Absent Party — Prohibited.</italic> Where the defendants — as in instant case — fail to answer a complaint or to make any effort to appear before the trial court, the trial court is not obliged, and indeed should not, assume a position adversarial to the plaintiffs and representative of the parties declining to appear; actually, it is not the court's role to defend an absent party. 2. <bold>JUDGMENT</bold> — <italic>Default — Rule — Proper Course of Action.</italic> C.R.C.P. 55 provides for the proper course of action in the event a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend: his default shall be entered, followed by in certain instances a hearing, and, if proper, an entry of judgment by default. 3. <italic>Default — Investigation by Court — Proper — Rule.</italic> If, to enter a default judgment or to carry it into effect, the court believes it necessary to investigate any matter raised by the proposed entry of judgment, it may do so by conducting hearings or ordering whatever it deems necessary and proper to that end within the purview of C.R.C.P 55(b)(2). 4. <bold>COSTS</bold> — <italic>Attorneys' Fees — Propriety — Questioned — Judge — Conduct</italic><italic>Hearing — Proper — Default Judgment.</italic> Where, in instant case, respondent judge questioned the propriety of the amount of attorneys' fees, he should have conducted a hearing on that matter rather than simply deny the apparently valid motion for a default judgment. 5. <bold>PRACTICE AND PROCEDURE</bold> — <italic>Rules — Purpose — Safeguarding of Interests.</italic> The rules of civil procedure were fashioned to define a judicial procedure by which all parties' interests may be safeguarded. 6. <bold>JUDGMENT</bold> — <italic>Default — Rule — Set Aside.</italic> C.R.C.P. 55(c) allows for the setting aside for good cause of both an entry of and a judgment by default.<page_number>Page 466</page_number> 7. <italic>Default — Proper — Service — Jurisdiction — Failure to Answer or</italic><italic>Appear.</italic> Respondent court ordered to enter default judgment against defendant properly served and within court's jurisdiction who neither answered complaint nor made an appearance.

1. <bold>EXTRADITION AND DETAINERS</bold> — <italic>Photographs — Documents — Identity —</italic><italic>Finding — Record.</italic> Photographs accompanying extradition documents, authenticated by the governor of the demanding state, can be used to establish the identity of the person sought to be extradited; and since such finding by the court with reference to petitioner is supported by the record, the judgment of the court which discharged the writ is affirmed.

1. <bold>CRIMINAL LAW</bold> — <italic>Informant — Disclosed — Determination — Trial Court —</italic><italic>Balance — Needs — Right.</italic> When determining whether the identity of a confidential informant should be disclosed, the trial court must balance the needs of law enforcement officials to preserve the anonymity of the informant with the defendant's right to obtain evidence necessary for the preparation of his defense. 2. <italic>Informant — Disclosure — No Fixed Rule — Facts — Discretion of</italic><italic>Court.</italic> There is no "fixed rule" that may be applied with respect to disclosure of a confidential informant; rather, each case must turn on its own facts; thus, the determination is one that lies within the sound discretion of the trial court. 3. <italic>Informant — Identity — Essential — Preparation of Defendants' Case —</italic><italic>Evidence — Production — Proper.</italic> Where trial judge concluded that the<page_number>Page 475</page_number> identity of the informant was essential to the preparation of the defendants' case, and where record reflects evidence to support the disclosure ruling, reviewing court will therefore not invade the province of the trial judge; the prosecution was properly ordered to produce the name of the informant or have the charges dismissed.

1. <bold>LICENSES</bold> — <italic>Gainful Employment — Conviction — Board — Due Weight.</italic> Although a person should not be deprived of the right to gainful employment solely because he/she has been convicted of felonies or crimes of moral turpitude, a licensing board may properly give due weight to such information when considering whether to issue a license to that person. Section <cross_reference>24-5-101</cross_reference>, C.R.S. 1973. 2. <italic>Motor Vehicle Salesman's License — Convictions — Federal Court —</italic><italic>Denial — Proper.</italic> With reference to plaintiff's application for a motor vehicle salesman's license, where evidence was introduced at licensing board hearing that plaintiff had been convicted in federal court of conspiracy to transport and sell stolen motor vehicles in interstate commerce and of three counts of selling stolen vehicles, <italic>held</italic>, under such circumstances, the board was entitled to consider the convictions as evidence that the plaintiff had indulged in a prior fraudulent business practice under section <cross_reference>12-6-118</cross_reference>(5)(b), C.R.S. 1973; thus, the board acted within its statutory authority in denying plaintiff's application for a license; moreover, there being competent evidence to support the findings of the board, the denial of plaintiff's application was neither arbitrary nor capricious. 3. <bold>STATUTES</bold> — <italic>Presumption of Constitutionality — Burden to Overcome —</italic><italic>Extremely High.</italic> The burden of proof to overcome the presumption of constitutionality of a statute is extremely high where the challenge is to the facial validity of the statute, and there is no potential inhibition of fundamental freedoms such as freedom of speech. 4. <bold>LICENSES</bold> — <italic>Motor Vehicle Salesman's License — Denial — Statute —</italic><italic>Constitutional — Fraudulent Business Practice.</italic> Where applicant for a motor vehicle salesman's license challenged the constitutionality of section <cross_reference>12-6-118</cross_reference>(5)(f), C.R.S. 1973 — which provides that such application may be denied if applicant has indulged in any "fraudulent or unconscionable business practice" — contending that the term "fraudulent or unconscionable business practice" is so vague and uncertain as to be unenforceable, <italic>held</italic>, since the licensing board denied the plaintiff's license based upon application of the term "fraudulent business practice" the term unconscionable is not central to the determination of this cause; moreover, the plaintiff has not asserted that his prior conduct was not a fraudulent business practice, nor has he in any manner demonstrated how this term is<page_number>Page 484</page_number> vague or uncertain in describing his prior criminal acts; thus, plaintiff has failed to overcome the presumption of constitutionality with which the challenged statutory provision is invested; the term "fraudulent business practice" is sufficiently specific, and there was ample basis upon which the licensing board could validly deny plaintiff's application.

1. <bold>DAMAGES</bold> — <italic>Exemplary — Proof — Statutes.</italic> Under section <cross_reference>13-21-102</cross_reference>, C.R.S. 1973, exemplary damages may be assessed in a civil action if the injury is inflicted through fraud or with malice, insult, or a wanton and reckless disregard of the victim's rights and feelings; moreover, under section <cross_reference>13-25-127</cross_reference>(2), C.R.S. 1973, those elements must be established beyond a reasonable doubt. 2. <italic>Exemplary — Award — Purpose.</italic> The purpose for the award of exemplary damages is to punish the wrongdoer as an example to others; as such, conduct which is merely negligent cannot serve as the basis for exemplary damages. 3. <italic>Exemplary — Requirements — When Met.</italic> The requirements for the award of exemplary damages are met if the defendant, while conscious of his conduct and cognizant of existing conditions, knew, or should have known, that the injury would probably result from his acts. 4. <italic>Exemplary — Standard — Sufficiency of Evidence — Support — Finding</italic><italic>of Jury.</italic> With reference to an award of exemplary damages, the standard to be applied is whether there was sufficient evidence, when viewed in its totality and in the light most supportive of the verdict, to support the jury's finding on this issue. 5. <bold>ASSAULT AND BATTERY</bold> — <italic>Exemplary Damages — Finding — Beyond Reasonable</italic><italic>Doubt — Willful and Wanton Conduct — Award — Proper.</italic> In tort action for injuries allegedly received as a result of an assault and battery committed by police officer, reviewing court holds that the jury, by believing the testimony of the plaintiffs' witnesses at trial, could find beyond a<page_number>Page 509</page_number> reasonable doubt that the defendant willfully and wantonly disregarded the rights of the defendants; accordingly the award of exemplary damages was proper. 6. <bold>DAMAGES</bold> — <italic>Punitive — Purpose.</italic> The purpose for punitive damages is to punish the wrongdoer and thus deter similar conduct in the future. 7. <italic>Exemplary — Relation — Actual.</italic> Exemplary damages must bear some relation to the actual damages. 8. <italic>Exemplary — Reasonableness — Determination — Motivation.</italic> Although no precise formula can be utilized in the determination of exemplary damages, the reasonableness of the award can be ascertained by examining the facts of the case to discover if the jury was impermissibly motivated by prejudice or properly guided by the purposes for exemplary damages. 9. <italic>Exemplary — Factors — Guide — Determination.</italic> The factors which guide the determination in assessing exemplary damages are: (1) the nature of the act which caused the injury; (2) the economic statutes of the defendant; and (3) the deterrent effect of the award on others. 10. <italic>Exemplary — Trial Court's Determination — Will Not Be Disturbed —</italic><italic>Absent Abuse.</italic> Since an appellate court is not in as advantageous a position as the trial court to weigh those factors which guide the determination in assessing exemplary damages, the trial court's determination of this issue will not be disturbed absent a clear abuse of discretion. 11. <bold>ASSAULT AND BATTERY</bold> — <italic>Severe Beating — Actual Damages — Exemplary — Not</italic><italic>Unreasonable.</italic> Where two men are beaten so severely that they incur one and two thousand dollars, respectively, in actual damages, and the gravity of such an assault is exacerbated when the perpetrator is an officer of the police department, <italic>held</italic>, under such circumstances, the assessment of exemplary damage must be of sufficient magnitude to deter such conduct by police officers in the future; accordingly, trial court did not abuse its discretion in awarding $3,000 and $4,500, respectively, and these sums are not unreasonable under the facts of this case. 12. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Indemnification — Denver Police Officers —</italic><italic>Assault and Battery — DeLong v. Denver — No Conflict — Charter —</italic><italic>Controls.</italic> Since indemnification of municipal police officers for exemplary damage awards, under <italic>DeLong v. City and County of Denver</italic>,<cross_reference>195 Colo. 27</cross_reference>, <cross_reference>576 P.2d 537</cross_reference> (1978), is a matter of concurrent local and statewide concern, the state statutes governing such situations supersede the Denver charter only to the extent that the policies of the enactments are in conflict; since there is no such conflict in instant case involving severe assault and battery committed by Denver police officers on both plaintiffs, the charter provisions control. 13. <bold>INDEMNIFICATION</bold> — <italic>Not Required — Charter — Lack of Ratification —</italic><italic>Retention in Employment — Not Conclusive — Good Faith.</italic> The charter provisions in instant case do not require indemnification when the municipality has not ratified the officers' malicious or willful and wanton misconduct subsequent to its occurrence; moreover, retention of the officers in employment, standing alone, is not conclusive of such ratification, especially when the municipality held a good faith belief in<page_number>Page 510</page_number> the propriety of the officers' actions; thus, the city is not liable to indemnify defendant for exemplary damages.

1. <bold>STATUTES</bold> — <italic>Construction — Rules — Criminal — Most Favorable to Accused.</italic> Whenever a court construes a statute, there are certain rules which must be followed; thus, in cases involving criminal statutes, as in instant case, the court must strictly construe the statute in the light most favorable to the accused. 2. <bold>INFANTS</bold> — <italic>Felony Child Abuse Statute — "Substantial Risk" — Refers Only</italic><italic>to Death.</italic> Under the felony child abuse statute, the term "substantial risk" in the statutory definition of "serious bodily injury" refers only to death and not to the succeeding terms such as: serious permanent disfigurement or protracted loss or impairment of the function of any part or organ of the body. Section <cross_reference>18-1-901</cross_reference>(3)(p), C.R.S. 1973 (now in 1978 Repl. Vol. 8). 3. <italic>Felony Child Abuse Statute — "Substantial Risk" — Applicable Only</italic><italic>to Death — Instruction — Succeeding Terms — Error.</italic> In prosecution for<page_number>Page 520</page_number> felony child abuse, trial court committed reversible error in instructing jury that, under felony child abuse statute's definition of "serious bodily injury," the term "substantial risk" applied not only to death but also to permanent disfigurement and protracted loss or impairment; actually, the term "substantial risk" applied only to death and not to the succeeding terms. 4. <italic>Felony Child Abuse — Evidence — Insufficient — Matter of Law —</italic><italic>Failure of Proof.</italic> In prosecution for felony child abuse, evidence was insufficient as a matter of law to support the stated charge under proper statutory instruction; moreover, a complete review of the record reveals that the prosecutor failed to prove that the injury to the child involved either serious permanent disfigurement or protracted loss or impairment of a body function.

1. <bold>STATUTES</bold> — <italic>Severability — Determination — Valid Provisions — Complete —</italic><italic>Balance.</italic> The proper inquiry for determining the severability of specific provisions in a statutory scheme focuses on whether the constitutionally valid provisions are complete in themselves and can, in turn, be given legal effect; thus, in pursuing this inquiry, courts must balance the obligation to construe statutes as constitutional and valid whenever possible against the duty to avoid judicially rewriting statutes in derogation of legislative intent. 2. <italic>Invalid Portions — Essential — Remaining Portions — Independent —</italic><italic>Negative.</italic> In general, if the invalid portions of a statutory scheme are essential and pervasive parts of that scheme, the remaining portions inevitably fail to reflect legislative intent and therefore cannot be given independent legal effect by the judiciary. 3. <bold>MUNICIPAL CORPORATIONS</bold> — <italic>Ordinance — Valid Portions — Not Severable</italic><italic>— Standards — Unconstitutional — Dismissal of Charges.</italic> Where constitutionally valid portions of the municipal ordinance were not severable, and where the discretionary standards were declared unconstitutional, <italic>held</italic>, under these circumstances, the entire ordinance must be struck down as unconstitutional; accordingly, the rulings of the superior court are reversed, and the causes are remanded with instructions to dismiss the charges.<page_number>Page 574</page_number>