CO Code § 16-10-202 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 10 - Jury Trials|Part 2 - Evidence of Inconsistent Statements - Variance|§ 16-10-202. Variance - Allegations and Proof

 When on the trial of any indictment, information, felony complaint, or complaint for any offense there appears to be any variance between the statements in the indictment, complaint, or information and the evidence offered in proof thereof, of any given name or surname, or both given name and surname, or other description whatever of any person who is therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance is not grounds for the acquittal of the defendant, unless the court before which such trial be had finds such variance is material to the merits of the case or may be prejudicial to the defendant. No indictment, information, felony complaint, or complaint shall be deemed insufficient nor shall the trial, judgment, or other proceedings thereon be reversed or affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits.   History. Source: L. 72: R&RE, p. 239, § 1. C.R.S. 1963: § 39-10-202 . L. 73: P. 499, § 4.    ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. PREJUDICE OF SUBSTANTIVE RIGHTS.   A. In General.    B. Defects in Charging Instrument.    C. Variances Between Allegations and Proof.        I. GENERAL CONSIDERATION.   Annotator's note. Since § 16-10-202 is similar to repealed § 39-7-17 , C.R.S. 1963, § 39-7-17 , CRS 53, CSA, C. 48, § 490, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Purpose of section. This section was intended to prevent the escape of guilty persons upon purely technical grounds not affecting their substantial rights and to render successful a prosecution which might otherwise fail because of harmless error. Wright v. People, 116 Colo. 306 , 181 P.2d 447 (1947).   This section does not apply to rulings of court during trial. In this section the defect for which a reversal should not be had seems to refer to a defect in the indictment or information and not to errors committed by the court in its rulings during the trial. People v. Heath, 51 Colo. 182 , 117 P. 138 (1911).   Or arraignment and plea of accused. This section does not affect the doctrine that when defendant was not arraigned and did not plead, a reversal must be had. People v. Heath, 51 Colo. 182 , 117 P. 138 (1911).   Applied in Straub v. People, 145 Colo. 275 , 358 P.2d 615 (1961); Duran v. People, 156 Colo. 385 , 399 P.2d 412 (1965); Stoudt v. People, 156 Colo. 568 , 400 P.2d 670 (1965).   II. PREJUDICE OF SUBSTANTIVE RIGHTS.   A. In General.   Technical errors which do not tend to prejudice the substantial rights of a defendant, do not afford grounds for reversal of a judgment of conviction. Sweek v. People, 85 Colo. 479 , 277 P. 1 (1929).   Technical errors are not grounds for reversal where verdict and judgment are correct. Koontz v. People, 82 Colo. 589 , 263 P. 19 (1927).   The general assembly repeatedly has endeavored to make it plain that, in both civil and criminal procedure, substance, not form, is the controlling consideration. Waite v. People, 83 Colo. 162 , 262 P. 1009 (1928).   Where error, if any committed, was harmless and did not tend to prejudice the substantial rights of the defendants on the merits, it will not warrant a reversal. Messer v. People, 65 Colo. 435 , 176 P. 828 (1918).   Misnomer of juror, manifest at the reception of the verdict and not then suggested or objected to by the accused, will not, when no prejudice to the accused appears, suffice to reverse judgment of conviction. Tollifson v. People, 49 Colo. 219 , 112 P. 794 (1910).   Admission of dying declaration in evidence. Reppin v. People, 95 Colo. 192 , 34 P.2d 71 (1934).   Or other erroneous ruling upon the admission of evidence cannot be made the basis for the reversal of an adverse judgment where it is without prejudice to the rights of the complaining party. Schreiner v. People, 95 Colo. 392 , 36 P.2d 764 (1934).   And error in giving instructions may not be fatal. It is not every error in instructions that requires a reversal. Where defendant's guilt is proven by conclusive evidence and his substantial rights are not prejudiced by the giving of an instruction which is in part erroneous, the judgment will not be reversed on that ground. Stewart v. People, 83 Colo. 289 , 264 P. 720 (1928).   Objections to technical defects are not encouraged. Objections to technical defects that do not tend to prejudice the substantial rights of the defendant on the merits, are not encouraged. Cliff v. People, 84 Colo. 254 , 269 P. 907 (1928); Albert v. People, 90 Colo. 219 , 7 P.2d 822 (1932).   B. Defects in Charging Instrument.   Defects not prejudicing substantial rights are not grounds for reversal. Judgment in a criminal case will not be reversed for a defect appearing in the information which does not tend to prejudice the substantial rights of the defendant on the merits. McClary v. People, 79 Colo. 205 , 245 P. 491 (1926); Woolsey v. People, 98 Colo. 62 , 53 P.2d 596 (1935).   No appeal shall be sustained for any matter in an information not affecting the real merits of the offense charged. Gray v. People, 139 Colo. 583 , 342 P.2d 627 (1959).   As erroneous statements in the charging parts of a criminal information which do not prejudice the substantial rights of defendant, and which may properly be rejected as surplusage, afford no ground for the reversal of a judgment of conviction. Cole v. People, 92 Colo. 145 , 18 P.2d 470 (1933).   Or where an indictment carries an erroneous allegation which could not mislead the defendant, its insertion does not tend to prejudice the substantial rights of the defendant on the merits and therefore is no ground for reversal. Cole v. Van Horn, 67 F.2d 735 (10th Cir. 1933); Cole v. People, 92 Colo. 145 , 18 P.2d 470 (1933).   Or minor objections to form of indictment or information are without force, since the form complained of in no way prejudices the rights of plaintiff in error. Holt v. People, 23 Colo. 1 , 45 P. 374 (1896).   Or discrepancy in dates of verification and filing of information. Although there is an apparent discrepancy in the dates of verification and filing of an information, no prejudice resulting to the rights of defendant, the error is harmless and without effect under this section. Grandbouche v. People, 104 Colo. 175 , 89 P.2d 577 (1939).   Or the failure of an information to state the name of the person from whom stolen goods were received does not affect the substantial rights of the accused, and under this section no exception to the omission having been taken before trial, it is without avail after conviction. Curl v. People, 53 Colo. 578 , 127 P. 951 (1912).   Or mistaken use of singular “offense”. Even though the affidavit used the word “offense” rather than “offenses”, it nonetheless constitutes compliance where there is no dispute that the facts were legally sufficient to charge both robbery and conspiracy. Martinez v. People, 156 Colo. 380 , 399 P.2d 415, cert. denied, 382 U.S. 866, 86 S. Ct. 134, 15 L. Ed. 2d 104 (1965).   Specific authority to justify a refusal of relief by reason thereof is furnished by this section. Shaw v. People, 72 Colo. 142 , 209 P. 812 (1922).   Thus, court may refuse to strike matter where no prejudice results. There is no error in the refusal of the trial court to strike from the indictment portions of the pleaded libelous matter where no prejudice resulted to the rights of the defendant. Bearman v. People, 91 Colo. 486 , 16 P.2d 425 (1932).   But major defects render charging instrument void. Unless a correction or amendment to a charging instrument is of a minor irregularity or minor defect, an information is not merely defective, it is void and of course is not subject to curative action. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).   And 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).   Applied in Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).   C. Variances Between Allegations and Proof.   A variance which does not tend to prejudice the substantial rights of a defendant is not fatal. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931); Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).   Any variance between the allegations and proof not material to the merits of the case, or that does not tend to prejudice the substantial rights of the defendant on the merits, does not constitute reversible error. Compton v. People, 84 Colo. 106 , 268 P. 577 (1928).   A variance between the copy of an instrument set out in an indictment and the original cannot be successfully invoked by the accused in a criminal prosecution unless such variance is in some way material; that is, a mere variance is of no consequence unless it prejudices the accused. Johnson v. People, 36 Colo. 445 , 84 P. 819 (1906).   Variance in the description of any matter shall not be deemed grounds for the acquittal of a defendant, unless such variance is material to the merits of the case or is prejudicial to such defendant. John Doe v. People, 160 Colo. 215 , 416 P.2d 376 (1966).   Such as misnomer of deceased's name in murder charge. In a prosecution for murder, where the information gave the name of the deceased as Lolly Lila Downey, it was held that it was not prejudicial to the defendant nor material to the merits of the case whether the deceased's true name was as set forth in the information or was Lila Lolly Downey and under the provisions of this section it was not error to refuse to give an instruction relating to the variance. Downey v. People, 121 Colo. 307 , 215 P.2d 892 (1950).   Or variance in sum of forged check. In a prosecution for forgery, where the only variance between the check offered in evidence and the description of the check as contained in the information is the monetary difference of one dollar, and the purported drawer, the named payee, the date, and the drawee bank as such appeared in the proffered check are all accurately described in the information, the slight variance obviously resulting from a typographical error cannot possibly prejudice defendant in any manner. John Doe v. People, 160 Colo. 215 , 416 P.2d 376 (1966).   Or failure to prove corporate status of owner of goods stolen. Whether company was a de jure or de facto corporation was not an issue in the case and the corporate existence was not a factor in the description either of the owner of the stolen property or of the person by whom it was stolen. The defendant could not have been misled by the allegation of corporate entity, nor prejudiced by failure of the prosecution to prove it; he is fully protected against prosecution for the same offense, and his substantial rights were in no manner adversely affected. Under such circumstances the failure to prove the corporate status of the victim was an immaterial variance and not prejudicial to the accused. Kelley v. People, 166 Colo. 322 , 443 P.2d 734 (1968).   Or the fact that a mortgage was not disclosed. In a prosecution for conspiracy to burn a dwelling, the evidence disclosed that the house was mortgaged, a fact not mentioned in the information. Under this section, such a discrepancy is not a variance. Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).   But variance was fatal where offense proved was not the offense charged. There was a fatal variance between the allegations of the count of the information on embezzlement and the proof offered where the defendant was charged with converting with an intent to steal a certain check duly signed by corporation officers and the people's evidence clearly established that the check was not duly signed by an officer of the corporation, but was in fact a forgery, which offense defendant was not charged with. Hence the motion for a directed verdict of not guilty at the conclusion of the people's case should have been sustained. Burns v. People, 145 Colo. 559 , 360 P.2d 106 (1961).   Or where material variance concerns instrument which is basis of offense charged. In criminal prosecutions for libel, forgery and other cases where the instrument incorporated in the indictment is the basis of the offense charged, a material variance between the instrument pleaded and the original introduced in evidence to support it, will be fatal. Johnson v. People, 36 Colo. 445 , 84 P. 819 (1906).   Major defects may not be corrected by amendment. 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).