People v. Marion
| Decision Date | 24 September 1973 |
| Docket Number | No. 25499,25499 |
| Citation | 182 Colo. 435,514 P.2d 327 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-appellee, v. Charles E. MARION, Defendant-Appellant. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Dep. State Public Defender, Kenneth J. Russell, Mary G. Allen, Deputy State Public Defenders, Denver, for defendant-appellant.
The defendant (appellant), Charles E. Marion, was convicted by a jury of assault with intent to commit rape. C.R.S.1963, 40--2--34. The primary issues which were preserved on appeal and which are before us for determination relate to the effect of a prior photographic display on the victim's in-court identification and to the amendment of the information in the course of the defendant's trial. A detailed statement of the facts is not necessary to the resolution of either of the issues which are before us.
The defendant argues that the intended rape victim based her in-court identification on the prior photographic display and was, therefore, inadmissible. However, the court conducted a proper In camera hearing and determined that the victim had an independent basis for her in-court identification of the defendant apart from the photographic display. We have previously held that the trial judge's determination at the In camera hearing that an independent basis exists, provides a proper foundation for admission of the victim's identification testimony before the jury. Maynes v. People, Colo. 495 P.2d 551 (1972). See also Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1969, 18 L.Ed.2d 1199 (1967).
The only remaining issue which we must resolve relates to the amendment of the information. While the jury was being selected, the prosecution was permitted to amend the information, over the defendant's objection, to reflect that the crime which was charged constituted a violation of C.R.S.1963, 40--2--34, and not C.R.S.1963, 40--2--32, and was also allowed to delete certain language from the information. The deletions which the court permitted related to the age of the victim and her marital status. Crim.P. 7(e) provides that:
'The court may permit an information to be amended as to form or substance at any time prior to trial; the court may permit...
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Cervantes v. People
...have stated in the past that the statutory reference in an information is an immaterial part of the information, People v. Marion, 182 Colo. 435, 437, 514 P.2d 327, 328 (1973), we made this statement in a case in which the information initially cited the wrong statute. In Marion, we refused......
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People v. Bergstrom
...reference in the information under which the accused is charged is immaterial to the validity of the information, People v. Marion, 182 Colo. 435, 514 P.2d 327; its incorrect citation is not ground for reversal, absent substantial prejudice, Lucero v. People, 164 Colo. 247, 434 P.2d 128. No......
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People in Interest of R. G.
...69 Colo. 124, 169 P. 152 (1917). Moreover, a specific statutory reference is an immaterial part of an indictment. People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); and its incorrect citation is not grounds for reversal, absent substantial prejudice. Lucero v. People, 164 Colo. 247, 434 ......
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People v. Cervantes, 81CA0788
...defendant, having failed to request a continuance, has no basis for claiming prejudice or surprise. See Crim.P. 7(e); People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973). Moreover, we find the rationale of People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979) apropos here. In that case, ......