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18-4-404. Obtaining control over any stolen thing of value - conviction.


Every person who obtains control over any stolen thing of value, knowing the thing of value to have been stolen by another, may be tried, convicted, and punished whether or not the principal is charged, tried, or convicted.


Source: L. 71: R&RE, p. 429, 1.C.R.S. 1963: 40-4-404.



Annotators note. Since 18-4-404 is similar to former 40-5-11, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

This section makes the buying or receiving of stolen goods a crime. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

For distinctions between larceny and receipt of stolen goods under former statute, see People v. Lamirato, 180 Colo. 250, 504 P.2d 661 (1972).

Receiving stolen goods is a distinct crime from the original larceny of the property, and the party committing the larceny is not the accomplice of one who purchased the goods from him knowing them to have been stolen. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

An integrant of the crime of receiving stolen property is knowledge that it has been stolen. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959); Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970); People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973).

It is fundamental that knowledge of the fact that the property received is stolen is an essential element of the crime, and lack of such proof requires a dismissal. People v. Schamber, 182 Colo. 355, 513 P.2d 205 (1973).

Guilty knowledge must be both alleged and proved, and the burden of establishing knowledge on the part of the defendant is upon the prosecution. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

Mere proof of recent, unexplained possession insufficient to support conviction. In order to support a conviction of knowingly receiving stolen goods there must be proof of some circumstances showing knowledge of the theft beyond mere proof of recent, unexplained, exclusive possession of the property. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970); People v. Manning, 180 Colo. 14, 501 P.2d 1046 (1972).

And juries should be so instructed. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

Although jury may consider such evidence. Recent, unexplained, exclusive possession is a fact which the jury may well consider along with other evidence, either direct or circumstantial, of knowledge of the theft. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

Instruction on inference created by possession of stolen property. It is never proper, in a case for receiving stolen goods knowing them to have been stolen, for the jury to be instructed that the unexplained possession alone of such recently stolen property is either a circumstance from which guilt may be inferred or that such possession is a circumstance strongly indicative of guilt which would justify, support, or warrant a verdict for the state, where such possession is unaided by other proof tending to show that the accused received such property knowing it to have been stolen. Noble v. People, 173 Colo. 333, 478 P.2d 662 (1970).

Where the defendant contended that since the court instructed the jury that the exclusive possession of stolen property recently after the commission of a theft may be an incriminating circumstance, the court should have further given an instruction defining recently after the commission of a theft, it was held that the court did not err as such instruction could only have stated that whether or not defendants possession was recent was a matter for the determination of the jury. Tatum v. People, 174 Colo. 301, 483 P.2d 964 (1971).

Manner of describing property. As in larceny, so in receiving, the property is identified by description of the stolen things and their ownership, namely, the thing stolen must be described in the same manner as in larceny. Miller v. People, 13 Colo. 166, 21 P. 1025 (1889).

Testimony of thief against one charged with receiving the stolen goods is not subject to infirmities attached to accomplice testimony. Where witness admitted burglarizing an establishment and delivering articles stolen to defendant who was charged with receiving stolen goods, such witness was not an accomplice and an instruction concerning the testimony of an accomplice was not appropriate. Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961).

Although it is a question of fact, taking profit from a corporation without paying shareholders may be considered theft. When majority shareholder used profits for personal uses, the majority shareholder, in essence, declared a distribution. Although a distribution was not formally announced, the trier of fact may find that this is theft and gives rise to a claim under this section. Tisch v. Tisch, 2019 COA 41, 439 P.3d 89.

Evidence of market value required. To make a prima facie case for violations under this section, it was incumbent upon the people to present competent evidence of the reasonable market value of the goods in question at the time of the commission of the alleged offense. People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973).

Evidence of price of goods insufficient to prove guilty knowledge. Where sole evidence of receipt of stolen goods was that defendant purchased the goods at a price which was not much lower than the fair market price of the goods, it was insufficient to establish guilty knowledge. People v. Manning, 180 Colo. 14, 501 P.2d 1046 (1972).

And case lacking proof of knowledge is not for jury. Negation of the essential element of guilt, a defendants knowledge that property received was stolen at the time he received it, makes an incomplete case, one which should not be submitted to a jury for deliberation and verdict. Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).

Evidence sufficient to go to jury. Where the evidence shows that a defendant has in his possession goods of the same kind as those stolen, and there is additional evidence and other circumstances from which an inference can reasonably be made that the goods are the same as those previously stolen, or that the accused had knowledge of their stolen character, the case is properly submitted to the jury. Tatum v. People, 174 Colo. 301, 483 P.2d 964 (1971).

Sufficient evidence to support conviction. People v. Bailey, 191 Colo. 366, 552 P.2d 1014 (1976).

Evidence insufficient for conviction. People v. Maestas, 181 Colo. 180, 508 P.2d 782 (1973).

Applied in People v. Montoya, 667 P.2d 1377 (Colo. 1983).