Committee Comments

This introductory instruction is to be used with respect to the crimes created by 21 O.S. 1991, § 1713, commonly known as the "receiving stolen property" statute.

The statute actually creates two crimes, receiving stolen property and concealing stolen property, as is reflected in the alternate language of the introductory instruction.

When the crime charged is receiving stolen property, it is not necessary to allege the ownership of the property, or from whom the property was stolen. Woodruff v. State, 56 Okl. Cr. 409, 41 P.2d 129 (1935); Lordi v. State, 47 Okl. Cr. 102, 287 P. 1083 (1930). However, it is necessary to allege the person from whom the stolen property was received, or that the person from whom the stolen property was received is unknown. McGill v. State, 6 Okl. Cr. 512, 120 P. 297 (1912); Hartgraves v. State, 5 Okl. Cr. 266, 114 P. 343 (1911). A variance between the allegation in the information as to from whom the property was received and the evidence at trial as to from whom the property was actually received is a fatal variance requiring reversal of conviction. Bogess v. State, 29 Okl. Cr. 234, 233 P. 239 (1925). This pleading requirement, concerning from whom the stolen property was received, relates to procedural due process requirements, mandating the pleading of sufficient information to enable the defendant to prepare a defense. The name of the person from whom the stolen property was received is not an element of the crime.

When the crime charged is concealing stolen property, it would seem to be necessary to allege the name either of the owner of the property or of the person having possessory rights in the property. Although the statutory language indicates that the crime of concealing stolen property is concealment from the owner, it is the opinion of the Commission that the word "owner" should not be interpreted literally. The word "owner" should also include a person who has possessory rights in the property that is being concealed. This construction is in accord with the concept that larceny is a crime against possession, regardless of ownership. See Davidson v. State, 330 P.2d 607 (Okl. Cr. 1958); Sherfield v. State, 96 Okl. Cr. 223, 252 P.2d 165 (1952).