dissenting:
I respectfully dissent.
In the light of the fact that a district attorney may file a charge by information without presenting the matter to a grand jury, I find a distinction between the federal rule as represented by United States v. Cox, 342 F.2d 167 (5th Cir. 1965) and the instant situation. Under our Colorado Constitution a prosecution for a felony is commenced by indictment “[u]ntil otherwise provided by law.” The General Assembly has granted to prosecuting attorneys the authority to file informations in addition to authority to grand juries to return indictments. Sec. 16-5-101, C.R.S. 1973, et seq. In my opinion there has been no legislative intent to permit a district attorney to cast aside a felony indictment returned by a grand jury which charges a lesser included offense, and then file an information charging the greater offense.
MR. CHIEF JUSTICE PRINGLE joins in this dissent.