Petitioner was convicted of the charge of larceny by bailee in the District Court in and for the City and County of Denver on May 16, 1961. The conviction was affirmed on November 5, 1962, by the Colorado Supreme Court, 376 P.2d 170 (Colo. 1962). Petitioner contends here that evidence indispensable to that conviction was obtained by an illegal search and seizure and that by virtue of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), its use at trial constituted a violation of his rights to due process as guaranteed by the Fourteenth Amendment to the United States Constitution.
This motion was denied and appellee was subsequently sentenced. The Colorado Supreme Court affirmed the judgment upon the merits, Peters v. People, 151 Colo. 35, 376 P.2d 170, stating in pertinent part: "We conclude that the decision * * * [in Mapp v. Ohio] went no farther than to exclude in the state courts the use of evidence obtained by way of an unreasonable search and seizure as forbidden by the Fourth Amendment to the United States Constitution. It does not exclude all evidence which might be obtained as an incident to a lawful arrest, nor does it preclude the admission of all evidence which may have been obtained without the sanction of a search warrant.
See also 2 Wigmore, Evidence § 325 (3d ed. 1940). Cf. Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962). Seen in this light, the false exculpatory statement about the watch would also be significant evidence of guilt with regard to the other possessions as well.
Or it could have instructed the jury that it could find the defendant guilty of theft (by taking) or theft (by receiving), but not both, and, if it found the defendant guilty of one theft count, it might find him guilty of the related conspiracy count but not the other conspiracy count. See Small v. People, 173 Colo. 304, 479 P.2d 386 (1970) and Peters v. People, 151 Colo. 35, 376 P.2d 170 (1962). There is no necessity to remand this case for a new trial.
The People respond to this argument that the date of the offenses was not a material allegation of the information and that therefore the charge is sufficiently proved if the evidence shows the crime occurred at any time between three years prior to the filing of the information. We concur that this position is well supported by the following cases: Imboden v. People, 40 Colo. 142, 90 P. 608; Laycock v. People, 66 Colo. 441, 182 P. 880; Noble v. People, 67 Colo. 429, 180 P. 562; Peters v. People, 151 Colo. 35, 376 P.2d 170; and Albritton v. People, 157 Colo. 518, 403 P.2d 772. IV.
In the instant case, the activities of October 30 showed guilty knowledge on the part of Tanksley; such were entirely inconsistent with his innocence of the robbery of October 27. This evidence was relevant as tending to prove such guilt. Jordan v. People, supra; Peters v. People, 151 Colo. 35, 376 P.2d 170; Beckwith v. United States, 367 F.2d 458 (10th Cir. 1966). Also, the evidence that the accused used force and threats to resist and evade arrest was relevant to show his guilt.
In fact, on amendment was necessary. The events which took place on March 22nd could have been shown to establish the commission of the crime even though the information erroneously alleged that it occurred on March 27. On this point we direct attention to the case of Peters v. People of Colorado, 151 Colo. 35, 376 P.2d 170, which we quote the following pertinent language: "* * * It is true that defendant was charged with having committed the crime of larceny by bailee on September 15, 1958, but the charge is sufficiently proved if the evidence shows that the crime occurred at any time within three years prior to the filing of the information.
Permission to make this search having been expressly granted and the record being devoid of any evidence of coercion or duress, it follows that there was no unlawful search. See Peters v. People, 151 Colo. 35, 376 P.2d 170. Two witnesses, i.e. the victim of the robbery and an eyewitness thereto, "positively" identified McGraw as the perpetrator thereof and each of these witnesses testified without equivocation that during the robbery McGraw displayed a gun which he used in a manner obviously calculated to secure speedy compliance with his written request that the victim deliver over to him the contents of a certain cash register situate in an east Denver super market.
It is well settled in Colorado that the date of the offense is an immaterial allegation, proof of commission of the offense at any time during the statute of limitation being sufficient. Peters v. People, 151 Colo. 35, 376 P.2d 170. The appellant relies on People v. McCullough, 38 Cal.App.2d 387, 101 P.2d 531, to support his contention.