Colorado § 16-5-201 - Indictments - allegations - form.

§ 16-5-201. Indictments - allegations - form.

Every indictment or accusation of the grand jury shall be deemed sufficient technically and correct which states the offense in the terms and language of the statute defining it, including either conjunctive or disjunctive clauses, or so plainly that the nature of the offense may be easily understood by the jury. Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged. The commencement of the indictment shall be in substance as follows:

STATE OF COLORADO

) ss.

County of........................................

​​​​​​​​​​​​​​ Of the ........ term of the ........ court, in the year ........ . The grand jurors chosen, selected, and sworn, in and for the county of .........., in the name and by the authority of the people of the state of Colorado, upon their oaths, present. (Here insert the offense, the name of the person charged, and the time and place of committing the same, with reasonable certainty.) Every indictment shall be signed by the foreman of the grand jury returning it and by the prosecuting attorney, his or her assistant, or his or her deputy.

Source: L. 72: R&RE, p. 214, § 1. C.R.S. 1963: § 39-5-201. L. 2003: Entire section amended, p. 972, § 1, effective April 17.

ANNOTATION

I. General Consideration.

II. Illustrative Cases.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Criminal Procedure in Colorado — A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "Being Specific", see 29 Dicta 195 (1952).

Annotator's note. Since § 16-5-201 is similar to repealed § 39-3-1, C.R.S. 1963, CSA, C. 48, § 447, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

It is the province of the general assembly to provide what elements of an offense must be set forth in an indictment or information. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971).

Purpose of section. This section and § 16-10-202, dealing with variance between allegations and proof, undoubtedly were adopted by the general assembly with a view of removing from consideration those technical rules of pleading long the bane of criminal procedure at common law and the occasion of many miscarriages of justice in antiquated times. Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937).

One purpose of the requirements of this section is to provide sufficient notice to defendants to permit the preparation of defenses prior to trial. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).

Purposes of criminal indictment by grand jury are twofold: First, it must give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared; second, it must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings. People v. Tucker, 631 P.2d 162 (Colo. 1981).

This section does not encourage subtleties and hypertechnical refinements in criminal cases. Sweek v. People, 85 Colo. 479, 277 P. 1 (1929).

An information or indictment charging offense in language of the statute is sufficient. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903); Knepper v. People, 63 Colo. 396, 167 P. 779 (1917); Balfe v. People, 66 Colo. 94, 179 P. 137 (1919); People v. Maestas, 199 Colo. 143, 606 P.2d 849 (1980).

An indictment or information is sufficient which describes an offense either in the language of the statute or so plainly that the nature of the crime may be readily and easily understood by a jury. Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932).

A charge so worded that it is "sufficient technically and correct", sufficiently sets forth the substance of the offense. If an indictment is correct when it charges in the words of the statute, then it must contain the substance of the offense. Papas v. People, 98 Colo. 306, 55 P.2d 1330 (1936).

It need not follow the exact language of the statute. Sarno v. People, 74 Colo. 528, 223 P. 41 (1924); Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932).

It must be so charged that it may be readily understood by accused and jury. Tracy v. People, 65 Colo. 226, 176 P. 280 (1918); Junes v. People, 72 Colo. 86, 209 P. 512 (1922); McConnell v. People, 73 Colo. 99, 213 P. 674 (1923); Sarno v. People, 74 Colo. 528, 223 P. 41 (1924); Cliff v. People, 84 Colo. 254, 269 P. 907 (1928); Compton v. People, 84 Colo. 106, 268 P. 577 (1928); Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932); Updike v. People, 92 Colo. 125, 18 P.2d 472 (1933); Schreiner v. People, 95 Colo. 392, 36 P.2d 764 (1934).

But it need not furnish such detail as to bar further prosecution. An indictment or information need not plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense for the judgment constitutes the bar. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

The ultimate test of the sufficiency of an indictment is whether it is sufficiently definite to inform the defendant of the charges against him so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecutions for the same offense. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975); People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978).

An indictment must be definite enough to give defendant sufficient notice of the crime alleged to prepare a defense. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Right to be informed of nature of charges. It is a defendant's right to be informed with reasonable certainty of the nature of the charges against him by requiring that an indictment answer the questions of "who, what, where and how" in cases where the acts constituting the offense are not adequately described by the statute. People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978).

Exceptions to general rule. If, as is not uncommon, the court by construction restricts a statute to a narrower application than its general words would indicate, an indictment on it in the statutory words will be ill; it must follow the court's narrower construction. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).

If the statute does not sufficiently set out the facts which constitute the offense so that the defendant may have notice of what he is charged, or if the words of the statute by their generality embrace cases which fall within the terms but not within the spirit or meaning of the statute, then a more particular statement of facts is necessary, and the specific facts to bring the defendant precisely within the inhibition of the law must be alleged. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903); Knepper v. People, 63 Colo. 396, 167 P. 779 (1917); Balfe v. People, 66 Colo. 94, 179 P. 137 (1919).

Where the acts constituting the offense are not described by the statute, an indictment merely reciting the statutory words is insufficient. People v. Xericos, 186 Colo. 21, 525 P.2d 415 (1974).

Bill of particulars not part of indictment. Although the purpose of a bill of particulars is to define more specifically the offense charged, a bill of particulars is not a part of an indictment nor an amendment thereto. It cannot in any way aid an indictment fundamentally bad. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).

Defendant is not legally charged by ineffective indictment. Where indictment is ineffective because it charges petitioner with offense alleged to have occurred at time subsequent to filing of indictment, defendant is not legally charged or subject to jurisdiction of court as to that transaction until reindicted. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972).

An insufficient indictment does not legally charge a crime or subject defendant to the jurisdiction of the court. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).

And omission of essential ingredient of offense may be taken advantage of at any stage. If any essential ingredient of an offense is omitted, advantage thereof may be taken, at any stage of the proceedings, even after sentence has been pronounced. Iwerks v. People, 88 Colo. 578, 298 P. 644 (1931).

Defective indictment may be asserted on appeal. Although defendant did not raise the insufficiency of the indictment at trial or in his motion for new trial, he is not thereby precluded from asserting that defect now on appeal. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).

But technicalities not affecting substantial rights will not be considered on review. Updike v. People, 92 Colo. 125, 18 P.2d 472 (1933); Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937).

Charging an impossible date as time of occurrence of alleged offense is matter of substance, not form, and attempt to indict a person for an offense alleged to have occurred subsequent to filing of indictment is a nullity. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972).

Jeopardy does not attach by indictment defective in substance. An indictment which is defective in substance merely prevents prosecution on the basis of that particular pleading. No jeopardy attaches, and the defendant may be charged by any appropriate and sufficient pleading. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).

Date of offense is material allegation. Allegations specifying the date on which an accused allegedly committed an offense are always material when the offense charged is one which may be barred by an applicable statute of limitations. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).

Value need not be alleged if not essential. Where the value is not essential to the punishment, as in indictments for robbery, it need not be distinctly alleged or proved. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933).

Applied in Stoltz v. People, 59 Colo. 342, 148 P. 865 (1915); Bridge v. People, 63 Colo. 319, 165 P. 778 (1917); People v. Horkans, 109 Colo. 177, 123 P.2d 824 (1942).

II. ILLUSTRATIVE CASES.

Assault with intent to rob. An indictment for assault with intent to rob which alleges, as to the assault, that the defendant "did make an assault", without stating all of the particulars comprehended by the statutory definition of that term is sufficient. McNamara v. People, 24 Colo. 61, 48 P. 541 (1897).

Conspiracy. In an indictment for conspiracy, unless the crime which it is alleged defendants conspired to commit is named, the indictment must allege facts constituting every element necessary to establish that offense as fully as if the indictment was for its perpetration. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907).

An indictment for conspiracy need not aver the means by which the conspiracy was to be carried out. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907).

Because of the veil of secrecy surrounding most conspiracies, considerable latitude is allowed in drafting a conspiracy indictment. People v. Gable, 647 P.2d 246 (Colo. App. 1982).

Forgery. An indictment drawn upon the section relating to forgery is framed in the language of the act, and hence it was not essential to use the words "falsely make" or to set out the instrument. Cohen v. People, 7 Colo. 274, 3 P. 385 (1883).

Murder. In an indictment for murder it is not necessary to state more than the statute provides in order to sustain a conviction of murder in the first degree. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).

An indictment which simply charged that the defendant murdered the victim was upheld as constitutional. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).

Perjury. A perjury indictment which does not set forth the alleged false statements, either verbatim or in substance, is insufficient to charge the crime. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).

A perjury indictment which tracks the language of § 18-8-502(1) and included a verbatim partial transcript of the defendant's grand jury testimony which was asserted to be materially false, together with the additional averment that the defendant did not believe the testimony to be true, is sufficient to advise the defendant of the charges against him. People v. Maestas, 199 Colo. 143, 606 P.2d 849 (1980).

For the sufficiency of indictment in prosecution for embezzlement of public property, see People v. Donachy, 196 Colo. 289, 586 P.2d 14 (1978).