on Mens Rea, or, Guilty Mind...
An integrant of the crime of receiving stolen property is knowledge that it has been stolen. C.R.S. '53, 40-5-12; Curl v. People, 53 Colo. 578, 127 P. 951, Ann.Cas.1914B, 171; Sitterlee v. People, 67 Colo. 523, 186 P. 527, 528. Interrogation as to Stull's knowledge that the money delivered to him was embezzled evoked negative responses; not one witness testified that the accused knew the money was embezzled, but, on the contrary, such testimony as was elicited on the subject was to the effect that he did not know. Negation of "the essential element of guilt—defendant's knowledge that the property was stolen at the time he received it—" makes an incomplete case, one which should not have been submitted to the jury for deliberation and verdict. Sitterlee v. People, supra.
Being confronted with the question whether there was knowledge on the part of Stull that the money was embezzled at the time he received it, our answer must be that as the possibility of it cannot be denied, so neither can the probability of it from the the proof adduced be affirmed. Proof that ascends no higher than the level of suspicion, surmise or conjecture has no substance in our system of jurisprudence, whether the problem considered be criminal or civil. State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814 (receiving stolen goods case); 1 Underhill's Criminal Evidence (5th ed.) § 17, pg. 21, 22; 1 Wharton's Criminal Evidence (12th ed.) § 11, pg. 26, 27; Neal v. Wilson County Bank, 83 Colo. 118, 263 P. 18; Denver & R. G. R. Co. v. Thompson, 65 Colo. 4, 169 P. 539. See Sitterlee v. People, supra.
In our view this evidence lacked the content necessary to permit submission of the case to the jury. In fact, much of the evidence for the prosecution directly disproved knowledge on the part of Stull that the money was embezzled. In this respect the District Attorney is to be commended. As an officer of the State, he represents the people, of whom the defendant is a member, and his duty is to present all available evidence tending to aid in ascertaining the truth. Be it remembered that the State is just as intensely interested in the acquittal of the innocent as it is in the conviction of the guilty. State v. Guilfoyle, 109 Conn. 124, 145 A. 761. Stull v. People, 344 P. 2d 455, 457 (Colo. 1959).
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