Bustamante v. People

• Decision Date: 04 November 1957
• Docket Number: No. 18151,18151
• Parties: , 61 A.L.R.2d 1217 Ed BUSTAMANTE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 885

317 P.2d 885

136 Colo. 362, 61 A.L.R.2d 1217

Ed BUSTAMANTE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 18151.

Supreme Court of Colorado, En Banc.

Nov. 4, 1957.

Carmel A. Garlutzo, Trinidad, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.

SUTTON, Justice.

Plaintiff in error, County Clerk of Las Animas County, Colorado, to whom we shall refer herein as defendant, was convicted, as County Clerk of having embezzled on or about January 2, 1954, funds of said county in the amount of $888.40. Defendant, as County Clerk of Las Animas County, had previously been convicted by a jury of embezzling $1,689 of said county's funds between May 24, 1953, and October 19, 1954. This latter conviction was reversed on May 21, 1956, by this court in Case No. 17802, due to errors of law and remanded for a new trial. Bustamante v. People, 133 Colo. 497, 297 P.2d 538.

In the instant case, both prior to and throughout the trial, defendant's counsel repeatedly and in proper time advanced the plea of double jeopardy because the second trial began April 30, 1956, and as appears above our court had not yet decided the first case then here on writ of error.

Motion to set aside the verdict and to discharge the defendant was overruled and denied as was defendant's motion and amended motion to grant a new trial, and defendant was sentenced to the state penitentiary. Defendant is now here on writ of error.

Of the twenty-two errors alleged we need only consider two, which are summarized as hereinafter set forth.

First Question to Be Determined:

Is it prejudicial error to deny a defendant's motion, made and ruled upon before trial, to strike a verification placed on the information after service thereof, and to fail to quash said information as a result of said motion?

This question is answered in the negative.

In Colorado the 'Requisites of information--form' are set forth by statute (C.R.S. '53, 39-4-4), and no allegation is made that the information violates any provision thereof. Defendant's complaint is that C.R.S. '53, 39-4-2 relating to the verifying of informations was not followed before trial resulting in prejudicial error. The latter section provides in part:

'* * * In all cases in which the defendant has not had or waived a preliminary examination there shall be filed with the information the affidavit of some credible person verifying the information upon the personal knowlede of affiant that the offense was committed.'

In the instant case the information was filed in the district court September 28, 1955. On March 26, 1956, following a hearing on defendant's motion to quash the information the trial court granted the district attorney twenty-four hours to verify the information. The record shows it was then verified by one Fred E. Gonzales on that date.

It is elementary that one charged with crime must be brought into court on a complaint, information, or indictment made or found according to the requirements of the law. State v. Donaldson, 101 Vt. 483, 144 A. 684. Unless the correction or amendment to the charging instrument is of a minor irregularity or minor defect, the information is not merely defective, it is void and of course is not subject to curative action. Any conviction based on an information requiring major amendment is void, for the court is without jurisdiction. State v. Harre, 109 Vt. 217, 195 A. 244.

It has been held that when an information is found to be defective in any respect that it is the better practice to make an entirely new one and it clearly cannot be altered or amended without the consent of the one who made it. Lewis v. State, 15 Neb. 89, 17 N.W. 366.

22 C.J.S. Criminal Law § 314, p. 466, says in part:

'Generally, a complaint (criminal) 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. * * *'

If the accused sees fit to waive the benefit of the oath and go to trial on an unverified complaint he cannot later complain. Lewis v. State, supra.

In Colorado it has been held that want of such an affidavit on an information is not jurisdictional. It is for the benefit of the defendant and is waived unless timely objection is made thereto in the trial court. See Harris v. Municipal Court, 123 Colo. 539, 543, 234 P.2d 1055 and authorities cited therein. Once timely objection is made the verification may be provided before trial at the direction of the trial court. Brown v. State, 9 Okl.Cr. 382, 132 P. 359.

In this action prior to the trial the state could have withdrawn the information and, by the same token, it could have had defendant served with a properly verified information. Here defendant was not prejudiced by the amendment; he was never under any misapprehension as to what he was charged with; he was not surprised nor misled; he was never misnamed nor denied an essential allegation. We thus conclude that the correction authorized before trial by the trial court was of form, not substance. It therefore must be considered to have been an irregularity subject to correction in proper time. See St. Louis v. People, 120 Colo. 345, 355, 209 P.2d 538; and U. S. A. C. Transport, Inc., v. U. S., 10 Cir., 203 F.2d 878, certiorari denied 345 U.S. 997, 73 S.Ct. 1139, 97 L.Ed. 1403, rehearing denied 346 U.S. 842, 74 S.Ct. 16, 98 L.Ed. 362.

Thus defendant having been found to be subject to the trial court's jurisdiction by virtue of the corrected information we now proceed to consider the issue of double jeopardy.

Second Question to Be Determined:

When a defendant has pending a writ of error based upon his conviction of the crime of embezzlement allegedly committed between certain dates may the state, over defendant's objections, file on defendant and proceed to trial for an alleged embezzlement on a date certain which is contained within the former period of time and which in so far as the informations are concerned involves the same office and funds?

This question is answered in the negative.

In Bustamante v. People, No. 17,802, supra, the charging part of the information read:

'That Ed Bustamante, late of the County of Las Animas, State of Colorado, then and there being a duly elected officer of the County of Las Animas, State of Colorado, to-wit: a duly elected, qualified and acting County Clerk and Recorder of and for the County of Las Animas, State of Colorado, did, between the dates of May 24, 1953, and October 19, 1954, wilfully, unlawfully, corruptly and feloniously use, make way with, secrete, and convert to his own use the sum of $1,689.00, lawful money of the United States of America, and being a portion of the public funds or moneys of said Las Animas County, Colorado, then and there being in the possession of the said Ed Bustamante and over which he, the said Ed Bustamante, had the supervision, care and control by virtue of his said office.' (Emphasis added.)

In the instant case the same defendant was charged as follows, to wit:

'That Ed Bustamante, late of the County of Las Animas, State of Colorado, then and there being a duly elected officer of the County of Las Animas, State of Colorado, to-wit, a duly elected, qualified and acting County Clerk and Recorder of and for the County of Las Animas, State of Colorado, did on or about the 2nd day of January, 1954, wilfully, unlawfully, corruptly and feloniously use, make way with, secrete, and convert to his own use the sum of Eight Hundred and Eighty-Eight Dollars and Forty Cents ($888.40) in lawful money of the United States of America, and being a portion of the public funds or moneys of said Las Animas County, Colorado, then and there being in the possession of the said Ed Bustamante and over which he, the said Ed Bustamante, had the supervision, care and control by virtue of his said office.' (Emphasis added.)

Both informations are the same in content and form except for the italicized wording.

The record shows that the State below claimed in its answer to the motion...