Summary
In Ingersoll, we rejected the defendant's argument that an information alleging felony theft under C.R.S. 1963, section 40-5-2, was insufficient for failing to allege that the offense was committed with specific intent.
Summary of this case from People v. QuickOpinion
No. 25237
Decided February 13, 1973.
Defendant was convicted of felony theft. From denial of his motion in arrest of judgment, defendant appealed.
Affirmed
1. INDICTMENT AND INFORMATION — Felony Theft — Language of Statute — Failure to Allege — Specific Intent — Immaterial. Where information charged offense of felony theft in the language of the statute, it was not insufficient for failure to allege specific intent in the charging document.
2. Sufficient — Advise — Charges — Defend. An information is sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense.
3. THEFT — Charge — Statute — Sufficient — Advise — Jury — Nature. The offense of theft when charged as provided in 1967 Perm. Supp., C.R.S. 1963, 40-5-2(3), also sufficiently advises the jury of the nature of the offense for which defendant is on trial.
4. INDICTMENT AND INFORMATION — Every Element — Unnecessary. There is no requirement, either constitutional or statutory, that every element of the offense be alleged in the information.
5. JURY — Instructions — Apprised — Proof — Elements — Offense. Jury is apprised of the requirements as to the proof of the several elements of the offense charged through the court's instructions.
6. INDICTMENT AND INFORMATION — Offense — Alternative Ways — Motions — Bill of Particulars. Where the offense charged may be committed in alternative ways, the defendant may require the prosecution to state the particular manner in which he committed the offense by filing a motion for a bill of particulars.
7. PROSECUTING ATTORNEYS — Offense — Plead — Greater Particularity — Better Practice. Better practice for district attorneys would be to plead the offense with greater particularity in the first instance.
Appeal from the District Court of Adams County, Honorable Clifford J. Gobble, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, E. Ronald Beeks, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Allan I. Lipson, Deputy, for defendant-appellant.
The defendant Terry Lee Ingersoll was charged and found guilty of felony theft. 1967 Perm. Supp., C.R.S. 1963, 40-5-2. After sentence, the defendant filed a motion in arrest of judgment, claiming that he was not advised of the nature and cause of the accusation, rights guaranteed him by the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 16 of the Colorado Constitution.
The trial court denied the motion. The ruling was correct, so we affirm.
[1,2] The defendant concedes that the offense was charged in the language of the statute as permitted by 40-5-2(3), 1967 Perm. Supp., C.R.S. 1963. But, contends the defendant, since proof of specific intent is an essential element of the offense, the specific intent must be alleged in the charging document.
We dealt with the constitutionality of this statute in Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971), and held, in accordance with Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968), that the information is sufficient if it advises a defendant of the offense with which he is charged. In Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368 (1961), we said that an information is sufficient "if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense. Johnson v. People, 110 Colo. 283, 133 P.2d 789; People v. Warner, 112 Colo. 565, 151 P.2d 975."
[3-5] The Offense of theft when charged as provided in 1967 Perm. Supp., C.R.S. 1963, 40-5-2(3), also sufficiently advises the jury of the nature of the offense for which the defendant is on trial, Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947). There is no requirement, either constitutional or statutory, that every element of the offense be alleged in the information, although the several elements (such as specific intent) must, of course, be proved on the trial. The jury is apprised of the requirements as to the proof of the several elements of the offense charged through the court's instructions. See People v. Butcher, 180 Colo. 429, 506 P.2d 362.
[6,7] Where, as here, the offense charged may be committed in alternative ways, the defendant may require the prosecution to state the particular manner in which he committed the offense by filing a motion for a bill of particulars. Crim. P. 7(f). This suggests that the better practice for district attorneys would be to plead the offense with greater particularity in the first instance.
The judgment is affirmed.
MR. JUSTICE GROVES does not participate.