Summary
In Shortt, we held that the trial court had acted improperly in dismissing an information which charged the crime of possession of cannabis with intent to sell.
Summary of this case from People v. PaulsenOpinion
No. 27347
Decided December 6, 1976.
Appeal by the People from a judgment of dismissal of an information charging defendant with possession of cannabis with intent to sell.
Reversed
1. DRUGS AND DRUGGISTS — Cannabis — Possession With Intent to Sell — Statutes — Inform — Forbidden Conduct. Statutes, which created crime of possession of cannabis with intent to sell, adequately inform a person of ordinary intelligence of the conduct that is forbidden, that it is a crime to possess cannabis with intent to sell.
2. STATUTES — Subheading — Not Part of Text. Subheading provided in codification of relevant statutes is not part of text and will not defeat a clear legislative prohibition.
3. INDICTMENT AND INFORMATION — Possession of Cannabis — With Intent to Sell — Statutory Reference — Not Fatal. Statutory reference — involving crime of possession of cannabis with intent to sell — although it may be inaccurate — was an immaterial part of information, was not fatal and, if necessary, could be corrected by amendment.
Appeal from the District Court of Clear Creek County, Honorable Vasco G. Seavy, Jr., Judge.
John F. Healy, District Attorney of the Fifth Judicial District, W. Terry Ruckriegle, Deputy, for plaintiff-appellant.
No appearance by defendant-appellee.
This is an appeal by the People from a judgment of dismissal of an information charging the defendant with possession of cannabis with intent to sell in violation of section 12-22-404, C.R.S. 1973. Following a hearing on the defendant's motion to dismiss, the trial court concluded that the relevant statutes failed to "create" the crime charged in the information. In its order dismissing the information the court stated:
"There is, of course, no crime of possession to sell in 404. Insofar as the Information charges such crime, it is a nullity. Further, it is a strained construction of 412, penalties, to say a crime is legislatively enacted."
We do not agree with the trial judge's interpretation of the relevant statutes and therefore reverse.
[1,2] Section 12-22-404, C.R.S. 1973 (1975 Supp.) declares that it is unlawful to possess or use any dangerous drug, including cannabis. Section 12-22-412(3), C.R.S. 1973, in the section headed "Violations-Penalties," declares that:
"Any person who has in his possession any dangerous drug with the intent to dispense said drug in violation of the provisions of section 12-22-404 . . . is guilty of a felony. . . ."
"Dispense" is defined in section 12-22-403(6), C.R.S. 1973 to include the ". . . sale . . . to another person."
Read in context, these statutes adequately inform a person of ordinary intelligence of the conduct that is forbidden, that it is a crime to possess cannabis with intent to sell. The subheading provided in the codification of the relevant statutes is no part of the text and will not defeat a clear legislative prohibition. Section 2-5-113(4), C.R.S. 1973.
[3] This information complies with the technical requirement of specificity by setting forth the statutory crime charged with a sufficient degree of certainty that a court could pronounce judgment upon a conviction. Crim. P. 7(b)(2); Section 16-5-202, C.R.S. 1973. The statutory reference, although it may be inaccurate, was an immaterial part of the information, People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); Lucero v. People, 164 Colo. 247, 434 P.2d 128 (1967). As the trial court itself recognized, that inaccuracy was not fatal and, if necessary, could be corrected by amendment.
The motion to dismiss the information was improperly granted, and jeopardy not yet having attached, we reverse and remand for further proceedings.