Colorado § 16-5-202 - Requisites of information - form.

§ 16-5-202. Requisites of information - form.

(1) The information is sufficient if it can be understood therefrom:

(a) That it is presented by the person authorized by law to prosecute the offense;

(b) That the defendant is identified therein, either by name or by the defendant's patterned chemical structure of genetic information, or described as a person whose name is unknown to the informant;

(c) That the offense was committed within the jurisdiction of the court or is triable therein;

(d) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.

(2) The information may be in the following form:

STATE OF COLORADO

) ss.

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

​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​ In the ........ Court ........ The People of the State of Colorado, against ........ A ........ B ........ C ........ D ........, district attorney within and for the .......... judicial district of the state of Colorado, in the county of .......... in the state aforesaid, in the name and by the authority of the people of the state of Colorado, informs the court that A ........ B ........ on the ........ day of ......... A.D. 20 ...., at the said county of .........., did (here state the offense) against the peace and dignity of the people of the state of Colorado.

C ......................................................

D .............................................

District Attorney.

or C ....................... D ......................,

District Attorney,

by H ...................... M ......................,

Deputy.

(3) An information may be filed using the language of the statute defining the offense, including either conjunctive or disjunctive clauses. 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.

(4) A court shall not refuse to accept a complaint or information that contains the requirements of this section.

Source: L. 72: R&RE, p. 214, § 1. C.R.S. 1963: § 39-5-202. L. 2000: (1) amended, p. 454, § 13, effective April 24. L. 2003: (3) and (4) added, p. 972, § 2, effective April 17.

ANNOTATION

I. General Consideration.

II. Sufficiency of Information.

III. Illustrative Cases.

I. GENERAL CONSIDERATION.

Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 14 (June 1931).

Annotator's note. Since § 16-5-202 is similar to repealed § 39-4-4, C.R.S. 1963, § 39-4-4, CRS 53, CSA, C. 48, § 457, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Purpose of section. The requirement of the signature on the information is for the protection of the defendant as a guarantee that the prosecution is being conducted in good faith. Harris v. Mun. Court, 123 Colo. 539, 234 P.2d 1055 (1951).

General effect of section. This section means what it says and applies it to all informations except where in so doing it fails to give the defendant the nature and cause of the accusation as required by the constitution. Highley v. People, 65 Colo. 497, 177 P. 975 (1918).

This section is not in conflict with the bill of rights provision that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894).

Attorney general has same powers as district attorney. The attorney general may subscribe, present, and prosecute an information against a public offender with the same powers as the district attorney of the proper district. People v. Gibson, 53 Colo. 231, 125 P. 531 (1912).

Signature by deputy is proper. Signature of the prosecuting officer, typewritten, but followed by the name of his deputy, written with his own hand, is a compliance with this section. Almond v. People, 55 Colo. 425, 135 P. 783 (1913).

Additions to special prosecutor's name in information are treated as surplusage. Where the district attorney is disqualified from prosecuting a case and the court appoints a special prosecutor, the prosecutor so appointed is authorized to sign an information in the case in his own name, and the fact that he placed before his name the name of the district attorney and added to his own signature the words "special deputy" neither added to, nor detracted from, the proper authentication in his own name. The additions are treated as surplusage. Williams v. People, 26 Colo. 272, 57 P. 701 (1899).

Failure to sign information is not jurisdictional, but should be pointed out so that the trial court might direct the parties to comply with the statute. Harris v. Mun. Court, 123 Colo. 539, 234 P.2d 1055 (1951).

Phrase "against the peace and dignity" of people. An information concluding "against the peace and dignity of the same people of the state of Colorado", is in substantial conformity with the requirement of the constitution that all prosecutions shall be carried on in the name and by the authority of the people of the state of Colorado, and conclude against the peace and dignity of the same. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).

The omission from a criminal information of the concluding phrase "and against the peace and dignity of the same" goes to matter of form, and in no degree impairs the jurisdiction of the court. Chemgas v. Tynan, 51 Colo. 35, 116 P. 1045 (1911); People v. Hunter, 666 P.2d 570 (Colo. 1983).

Use of words "feloniously" and "unlawfully". Appellant complains that the information does not charge that the accused knowingly and wilfully committed the offense. Since the information charges the act as "unlawfully and feloniously" done, the objection does not affect the real merits. McConnell v. People, 73 Colo. 99, 213 P. 674 (1923).

The use of both the words "unlawfully" and "feloniously" in the statute does not require that the former must appear in indictment or information if the latter does. Bridge v. People, 63 Colo. 319, 165 P. 778 (1917).

Separate infractions of same law should be distinguished. In every information or indictment charging a criminal offense, good pleading required that sufficient facts be set forth to identify the crime from another infraction of the same law by the same defendant. This would seem essential in order to safeguard the accused against a second prosecution for the same offense, as well as to acquaint him with what he must meet on trial. Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957).

No substitution for section identified as subject of prosecution. Where a count of an information in a criminal case identifies with particularity the exact section of the statute upon which a prosecution is based, no other statute can be substituted for the one actually selected as forming the subject matter of the prosecution. Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964).

Amendment of minor irregularities only permitted. Generally, a criminal complaint or affidavit may be amended so as to correct minor irregularities or defects but major defects such as a material misnomer of accused or an omission of essential allegations cannot be cured by amendment on the examination. Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957).

Any conviction based on an information requiring major amendment is void, for the court is without jurisdiction. Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957).

When information fails to charge crime, court acquires no jurisdiction. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980).

Objections to form of information must be made before trial or they are waived. People v. Hunter, 666 P.2d 570 (Colo. 1983); People v. Joseph, 920 P.2d 850 (Colo. App. 1995); People v. Russell, 36 P.3d 92 (Colo. App. 2001).

Authority of district attorney is a technical matter subject to waiver. Just as a defendant may waive objections to venue, he or she may also waive any objection to the authority of the district attorney to bring a criminal charge. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).

Even if defendant did not waive objection to the form of the information, defendant must demonstrate how any errors prejudiced him in order for a defect in the form to dictate reversal of a conviction. People v. Russell, 36 P.3d 92 (Colo. App. 2001).

Applied in Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932); Carter v. People, 161 Colo. 10, 419 P.2d 654 (1966); People v. Bergstrom, 190 Colo. 105, 544 P.2d 396 (1975); People v. Shortt, 192 Colo. 183, 557 P.2d 388 (1976).

II. SUFFICIENCY OF INFORMATION.

This section governs the sufficiency of informations in criminal cases. Critchfield v. People, 91 Colo. 127, 13 P.2d 270 (1932).

The requisites of information form are set forth by this section. Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957).

The sufficiency of an information is not to be determined from the evidence. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).

An information must show the nature and cause of the accusation, that is, it must set out the crime charged. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894); Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).

Indictment must clearly state essential facts and answer questions of who, what, where, and how. People v. Tucker, 631 P.2d 162 (Colo. 1981).

Time when offense committed. The general rule is that, where time is not a material element of the offense, the precise time at which the crime is charged to have been committed is not material. Kogan v. People, 756 P.2d 945 (Colo. 1988).

If, however, information about the time is necessary to enable the defendant to prepare his defense or to guard against a subsequent prosecution for the same crime, such information must be provided. Kogan v. People, 756 P.2d 945 (Colo. 1988).

Standard of review for bill of particulars is whether the bill of particulars as produced sufficiently informs the defendant of the particular charges at issue so that he is given a fair opportunity to properly prepare his defense. Kogan v. People, 756 P.2d 945 (Colo. 1988).

Bill of particulars held insufficient. Bill of particulars which alleged that certain acts had been committed sometime during a nine-month period and the absence of any accompanying detail describing the defendant's alleged acts resulted in clear prejudice to the defendant. Kogan v. People, 756 P.2d 945 (Colo. 1988).

It must advise defendant of charge. An information is sufficient if it advises the defendant of the charge he is facing so that he can adequately defend himself and be protected from another prosecution for the same offense. Digiallonardo v. People, 175 Colo. 560, 488 P.2d 1109 (1971); Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); People v. Morones, 39 Colo. App. 451, 569 P.2d 336 (1977); People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978); People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Rubanowitz, 688 P.2d 231 (Colo. 1984); People v. Chavez, 730 P.2d 321 (Colo. 1986); People v. Baker, 45 P.3d 753 (Colo. App. 2001).

The ultimate test is that an information is sufficient if it advises a defendant of the charge he is facing. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971).

An information is sufficient if it informs the defendant of the charges against him so as to enable him to prepare a defense and plead the judgment in bar of any further prosecutions for the same offense. People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973); People v. Baker, 45 P.3d 753 (Colo. App. 2001).

And must set forth essential elements of crime. An information is sufficient to apprise a defendant of the charge he faces if it sets forth the essential elements charging the crime. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

But it need not set out the mode or manner of its perpetration, or the instrument or agency employed to accomplish the result. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894); Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).

Information need not specify lesser included offenses which may have been committed in commission of the described act. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981).

An information is sufficient if it states the offense in language that can be easily understood. Whitfield v. People, 79 Colo. 108, 244 P. 470 (1926).

Or in language of statute defining offense. The allegations of an information which follow the language of the statute defining the offense are sufficient to satisfy constitutional requirements, and the offense charged is set forth with such degree of certainty that the court could lawfully pronounce judgment upon conviction. Lewis v. People, 109 Colo. 89, 123 P.2d 398 (1942).

An information is sufficient if the charge is in the language of the applicable statute. People v. Morones, 39 Colo. App. 451, 569 P.2d 336 (1977).

An information is sufficient if the charge is in the language of the statute, however, an information need not follow the exact wording of the statute. Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); People v. Russell, 36 P.3d 92 (Colo. App. 2001).

Or with certainty that will support judgment. Statement of offense in the information is sufficient when set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).

But information 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).

Information need not include every element of the offense that must be proved at trial. Information charging possession of marijuana that failed to include "knowing" possession nevertheless provided sufficient notice to defendant for trial preparation and was adequate to bar further prosecution for the same offense. People v. Flockhart, 310 P.3d 66 (Colo. App. 2009), aff'd in part, rev'd in part, 2013 CO 42, 304 P.3d 227.

The statutory reference in an information is an immaterial part of the information. People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973).

Incorrect statutory reference not fatal. The incorrect citation of a specific statutory reference in an information is not grounds for reversal, absent substantial prejudice. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981).

Failure of charges to identify the particular statement or assertion alleged to be false is not a fatal defect. Information was sufficient to allow defendant to prepare a defense, defendant did not object to the charges or request a bill of particulars, and defendant did not demonstrate or even allege prejudice. People v. Vigil, 251 P.3d 442 (Colo. App. 2010).

Technical defects in information do not support reversal. The supreme court, in accordance with the spirit and intent of this section, has consistently refused to reverse criminal convictions for technical defects in the information or indictment which do not tend to prejudice the substantial rights of the defendants on the merits. Helser v. People, 100 Colo. 371, 68 P.2d 543 (1937); People v. Joseph, 920 P.2d 850 (Colo. App. 1995).

If an information is sufficient to state a charge and to assure fundamental fairness to a defendant, objections both to formal defects and to defects relating to geographical deficiencies involving improper venue or to the district attorney's authority to bring or prosecute a charge must be timely made or they will be deemed waived. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).

Technical defects in an information do not require reversal unless the substantial rights of the defendant are prejudiced. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978).

Factual error regarding venue will not make an information insufficient, so long as the information gives defendant notice of factual circumstances surrounding the charges and alleges that the crimes occurred within this state. People v. Brown, 70 P.3d 489 (Colo. App. 2002).

The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense. People v. Albo, 195 Colo. 102, 575 P.2d 427 (1978).

Each count of information must be independent of others. Absent a clear and specific incorporation by reference, each count of an information, to be valid, must be independent of the others and, in itself, charge the defendant with a distinct and different offense. People v. Moore, 200 Colo. 481, 615 P.2d 726 (1980).

When identity of victim immaterial. While the name of the victim of an offense should be alleged in an information, failure to do so is an immaterial defect, where the identity of the victim is not an essential element of the offense. People v. Hunter, 666 P.2d 570 (Colo. 1983).

III. ILLUSTRATIVE CASES.

Omission of such words as "at" or "within" is not fatal. The information charged that the defendant "on to wit — the county of Arapahoe", etc. The omission of any preposition as "at" or "within" before the name of the county was held not to impair the effect of the allegation as to venue. Balfe v. People, 66 Colo. 94, 179 P. 137 (1919).

Charge and information were sufficient, and district court had jurisdiction over defendant's case. The information was sufficient to enable it to be understood that the offense was committed within the jurisdiction of the county district court. Therefore, the information was not required to also allege that the offense was triable in the district court. People v. Perez-Hernandez, 2013 COA 160, 348 P.3d 451.

An information charging a crime necessarily charges an attempt to commit such crime. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).

Information for murder in the first degree includes all the lower degrees of criminal homicide. Harris v. People, 55 Colo. 407, 135 P. 785 (1913).

Intent to murder sufficiently charged in an information which charges defendant with making an assault with intent "to kill and murder". Hockley v. People, 30 Colo. 119, 69 P. 512 (1902).

An indictment charging that defendant unlawfully, feloniously, wilfully, purposely, and of his malice aforethought, did kill and murder the deceased, is sufficient to warrant a verdict finding that the homicide was committed with deliberation and premeditation. Redus v. People, 10 Colo. 208, 14 P. 323 (1887).

Unnecessary to allege homicide occurred incident to felony. To sustain a conviction for murder in the first degree committed in an attempt to perpetrate robbery, it is not necessary that the information should allege that the murder was committed in an attempt to perpetrate robbery. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).

Defendant was convicted of felony murder on an information charging that on a certain date, he "did feloniously, wilfully, and of his premeditated malice aforethought, kill and murder" a named person. Due process was not violated where the information contained every essential element demanded by the Colorado statutes and by generally approved principles of criminal pleading, apprised the defendant of the nature of the charge, the date, and the place, described the victim, and further alleged that the killing was with malice aforethought, but failed to pinpoint the allegation that the homicide occurred incident to a known felony. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).

Where kidnapping was alleged more generally as an element of felony murder, a finding by the jury of a more specific alternative act of kidnapping and the resulting jury instruction did not constructively amend the felony murder charge. One count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference. Esquivel-Castillo v. People, 2016 CO 7, 364 P.3d 885.

Burglary. Information in prosecution for burglary with force and larceny held sufficient as complying with this section, although the street and number of place burglarized was not given. Hoskins v. People, 119 Colo. 88, 200 P.2d 932 (1948).

An information is sufficient when it charges that on a certain day defendant unlawfully and willfully, feloniously, and maliciously attempted to break and without force enter a building which was not defendant's property, with the intent to commit theft contrary to the form of the statute in such case made and provided. Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972).

Criminal trespass count that fails to specify the underlying crime that defendant allegedly intended to commit is defective in form, but not in substance; however, since defendant did not pursue a bill of particulars and had notice of the underlying crimes defendant was not prejudiced. People v. Williams, 984 P.2d 56 (Colo. 1999).

Information charging defendant with possession of burglary tools held sufficient. People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973).

Information charging interference with a headgate held sufficient. Lambert v. People, 78 Colo. 313, 241 P. 533 (1925).

Information charging transporting intoxicating liquors held sufficient. Highley v. People, 65 Colo. 497, 177 P. 975 (1918).

Information charging defendants with entering into a contract in restraint of trade held sufficient. Campbell v. People, 72 Colo. 213, 210 P. 841 (1922).

Information charging failure to pay income taxes held sufficient. People v. Vickers, 199 Colo. 305, 608 P.2d 808 (1980).

Information charging defendant with crime of violence held sufficient. People v. Chavez, 730 P.2d 321 (Colo. 1986).

Information that charged defendant with criminal attempt, specified the ulterior crime, and cited to both criminal attempt and first degree murder statutes was substantively sufficient, even though better practice would have been to include the culpability element directly in the charge. People v. Russell, 36 P.3d 92 (Colo. App. 2001).

Information charging violation of bail bond conditions held sufficient. People v. Baker, 45 P.3d 753 (Colo. App. 2001).

Information held sufficient. Stoltz v. People, 59 Colo. 342, 148 P. 865 (1915); Moynahan v. People, 63 Colo. 433, 167 P. 1175 (1917); Whitfield v. People, 79 Colo. 108, 244 P. 470 (1926); Cliff v. People, 84 Colo. 254, 269 P. 907 (1928).