dissenting:
I respectfully dissent. In my opinion the indictment here is sufficiently specific to comply with statutory requirements as well as the pronouncements of this court.
The mere fact that the conduct complained of coincides with the statutory language does not invalidate the indictment. In Schraeder v. People, 73 Colo. 400, 215 P. 869 (1923), we held that “where the statute specifies the act or acts constituting the offense, it is sufficient, generally, as to such act or acts, to follow the language of the statute.” 73 Colo, at 402, 215 P. 869. Moreover, the majority fails to consider the applicable statute which not only codifies the holding in Schraeder but creates a presumption of validity for indictments couched in the language of the statute. Section 16-5-201, C.R.S. 1973, provides, in pertinent part:
“Every endictment or accusation of the grand jury shall be deemed sufficient technically and correct which states the offense in the terms and language of the statute defining it, or so plainly that the nature of the offense may be easily understood by the jury . . . .” (Emphasis added.)
The majority also fails to consider the applicable rule of criminal procedure, Crim. P. 7, the language of which is substantially the same as section 16-5-201, C.R.S. 1973.
Crim. P. 7(g) also sets forth a mechanism for adverse parties or the court to seek clarification of an apparently unclear though technically sufficient and correct indictment:
“(g) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made only within ten days after arraignment or such other time before or after arraignment as may be prescribed by rule or order. A bill of particulars may be amended at any time subject to such conditions as justice requires.”
While I recognize that a bill of particulars cannot salvage an otherwise invalid indictment, Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), the mechanism exists so that parties can clarify matters of a nonessential and nonprejudicial nature. Bush v. United States, 338 F.2d 400 (9th Cir. 1964) (indictment need not recite name of person to whom narcotics sold); Young v. United States, 288 F.2d 398 (D.C.Cir. 1961) (indictment need not state name of assault victim); Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970) (information need not state name of purchaser of narcotics since essence of the crime is the illegal sale).1
The majority relies on People v. Xericos, 186 Colo. 21, 22, 525 P.2d 415, 415-16 (1974), where the defendant’s indictment charged that he *237“did act or engage himself as a pimp.” The indictment was invalidated because it failed to relate with any specificity the act or acts which constituted the crime charged. In the present case, the indictment alleges specific actions, to-wit communications and attempted communications with the complaining witness with the intent to influence her actions by inducing her to “violate her oath of secrecy.”
The majority concludes its opinion, however, with the statement that the indictment must fail because it “leave[s] unanswered questions of who, what, where and how.” A fair analysis of the indictment shows that the “who, what, where and how” test set out by the majority is satisfied. The indictment in effect alleges that in the County of Pueblo (where) the defendant, within a specific nine day period, with the intent to influence a juror’s action in a case by inducing the juror (who) to violate her oath of secrecy (what) did knowingly and unlawfully attempt to communicate with the juror (how).
My research indicates that the appropriate standard for review of the legal sufficiency of an indictment is not whether it answers the questions of who, what, where and how, but whether it (1) contains the elements of the offense intended to be charged and gives the defendant sufficient notice of the charge so that a defense may be prepared; and whether (2) “the record shows with accuracy to what extent he may plead a former acquittal or conviction,” in the event other proceedings are taken against him for similar offenses. Russell v. United States, supra at 764, 82 S.C. at 1047, 8 L.Ed.2d at 251 (emphasis added); accord People v. Xericos, 186 Colo. 21, 525 P.2d 415 (1974).
The majority position is, in effect, that the indictment itself must be sufficient to bar any further prosecutions for the same offense. In support, the majority quotes the criteria for sufficiency of an indictment set out in People v. Xericos, supra:
“First, it must give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared. Second, it must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings.”
186 Colo, at 22-23, 525 P.2d at 416 (citations omitted, emphasis added).
The language in Xericos is not inconsistent with the criteria set forth in Russell v. United States, supra, where the Supreme Court of the United States held that the indictment and the record together must be sufficient to act as a bar to further prosecution for the same offense. Xericos does not require that the indictment stand alone as a bar to further prosecutions. Rather, Xericos requires that a defendant be able to “plead the resolution of the indictment” as a bar to subsequent prosecu*238tions. As such, the Xericos criteria direct a court, in assessing the resolution of an indictment, to review the record.2
People v. Howe, 178 Colo. 248, 496 P.2d 1040 (1972), decided by this court, held that the sufficiency of an indictment is not determined by whether the indictment alone will protect the accused against the possibility of double jeopardy. Rather, the court there held that the judgment was the bar. It is fundamental that “the extent of the judgment may be determined from an examination of the whole record.” Mora v. People, supra at 265, 472 P.2d at 144. Consistent with Howe, Mora, and my interpretation of the holding in Xericos are the other recent decisions of this court.3
Accordingly, I would reverse the ruling of the trial court, and remand with directions to reinstate the indictment.
See note 2 infra.
See 1 C.A. Wright, Federal Practice and Procedure Criminal, § 125 (1969) and cases cited therein:
“It has long been the rule that the entire record of the proceedings, and not the indictment or information alone, may be referred to if there is a claim that a subsequent prosecution constitutes double jeopardy.” (Emphasis added).
See, e.g. People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973):
“an information is sufficient if it informs the defendant of the charges against him so as to enable him to prepare a defense and plead the judgment in bar of any further prosecutions for the same offense.”
(Citations omitted, emphasis added); People v. Gnout, 183 Colo. 366, 517 P.2d 394 (1973) (information sufficient where defendant can plead judgment as bar to further prosecutions for same offense); People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973) (indictment sufficiently definite to inform defendant of charges and to enable him to plead the judgment as a bar to further prosecutions for same offense); Mora v. People, supra (information need not be sufficient to act as a bar to subsequent prosecution, since judgment constitutes the bar, and extent of judgment may be determined from examination of whole record). Cf. Loggins v. People, 178 Colo. 439, 498 P.2d 1146 (1972); Gallegos v. People, 166 Colo. 409, 444 P.2d 267 (1968).