dissenting:
I respectfully disagree with the majority conclusion and reasoning that the evidence was legally insufficient and also with the alternative basis that there was error in connection with the “similar transaction” instruction to the jury. Since the case turns on insufficiency of evidence, it becomes necessary to analyze the facts in some detail.
*2951. The Question Whether the Evidence was Sufficient.
The important prosecution witness was Betty Keator, the active embezzler. She was the person in the position of trust who had obtained many' thousand dollars and had “given” most of it to the defendant herein. The information was signed and verified by Bert F. Scribner, manager of The Rocky Mountain Bank Note Company. A reading of Betty Keator’s testimony does not indicate that she was “prosecution-minded.” Rather it suggests that she was somewhat reluctant and hence the more credible.
Betty Keator was cashier-bookkeeper for Rocky Mountain Bank Note Company at its Pueblo office. She administered the petty cash fund which amounted to $5,000.00 to $7,000.00, and this involved the payment of small bills of the company and included the disbursement of expense money to the salesmen, including Stull, defendant herein. She manipulated this petty cash fund so as to obtain money to spend on or give to the defendant. She sometimes obtained the counter-signature of the manager on checks before running them through the protectograph. Having obtained the counter-signature she would then raise the amount and cash the check. At other times she would take petty cash or would cash incoming checks. Most of the peculations occurred in the two years immediately prior to June 6, 1956.
To the knowledge of Stull, Betty Keator earned a maximum of $400.00 per month, and lived in a $40.00 per month rented house with her mother. At the same time she wore very expensive clothes and had three different late model cars during the period in question, including at the end a 1956 Oldsmobile. She also spent large sums of money on Stull’s entertainment, often flying by plane to meet him in Wichita, Kansas, in order to spend weekends or vacations with him.
There is no suggestion that Keator embezzled any money prior to her acquaintanceship with Stull in late *2961951 or 1952 at which time he was assigned by the Bank Note Company to a territory in the Pueblo area.
The personal relationship, so important to a correct evaluation of this evidence, had its inception in taverns. Stull, Betty and at times others would meet after work for drinks and would then play “dollar bill poker.” Stull (according to Betty) invariably won these games and his winnings amounted to $15.00 or $25.00 and sometimes more. As time went on the bets increased to $10.00, $15.00 or $20.00. The embezzlements started by taking sums out of the cash drawer in order to pay off the gambling debts.
In September 1955, according to Betty Keator, Stull came to her and told her that he needed $1500.00 in order to go into a uranium deal. She cashed checks to the company and took cash out of the petty cash fund in order to accumulate this amount and then delivered it to him. Then about two months later he came into the office and told her he needed $750.00 and that he would tell her about it over a drink that night. This sum was also obtained and paid to him.
In January 1956, Stull obtained $2,000.00 in the same manner on the pretext that he was entering a Muzak transaction in Kansas. The familiar mode of operation was followed in order to obtain this sum for him.
In April of 1956 on the occasion of Stull’s being arrested for a traffic offense, he obtained $500.00, according to Keator’s testimony, in order to pay his fine and expenses in connection with it.
The transaction charged in the information occurred on June 7, 1956. On this occasion the sum of $3800.00 was delivered to Stull. Leading up to this item Stull asked Betty to invest in a restaurant business involving the total sum of $5800.00. He stated that he could raise $2000.00 if she could get the remainder. She thereupon raised and converted three company checks and one payable to the company and delivered the sum to Stull in currency contained in an envelope. This, as were all of *297the other deliveries, was made on the loading dock of the Bank Note Company. She testified that she was unable to get this entire sum when Stull asked for it and that he called her on June 3, and abused her and cursed her for her failure.
The above do not constitute all of the payments made to the defendant. Keator also testified that:
“Well, I would give him — I can’t give exact sums, but I would give anywhere, when he was going out of town, on a trip, expense money, before he would leave — anywhere from $100.00 to $200.00, sometimes $300.00, before he would go on his trip; when he was travelling, he was going to play poker, and I would give him money for that.”
She also testified to paying his personal bills out of company funds, including the purchase of a $200.00 air conditioner for his company automobile, and purchase of cigarette lighters for Stull’s customers.
On two occasions Betty Keator spent her vacations with Stull in Wichita, and on a number of occasions she went to Wichita to be with him while he was in his .territory. Large sums were spent on these occasions.
Stull admitted that he received the $3800.00 but said that he was told that it was the proceeds from a cashed insurance policy. He denied that he had received the other large sums, including the gambling money, but admitted that Keator had spent substantial amounts on his entertainment. He said that suggestions had been dropped that she had received some money from her stepfather and other money had come from a trunk of a friend of her stepfather following the death of the friend. He had never asked her specifically about the source of the funds in question. He even accused Keator of blackmailing him with threatened disclosure of his infidelity to his wife in order to continue the relationship.
The idyllic relationship between Stull and Keator built as it was on drinking, gambling, embezzlement, marital infidelity and possibly blackmail came to an abrupt end*298ing on June 9, 1956, with the arrival of the inevitable auditor. On that date Stull called Betty Keator and asked her to meet him at the office. She replied that she didn’t want to go there because the auditor was there and he then replied: “Well, then, you know he is there,” and added, “that is what I wanted to tell you.”
Following discovery of her peculations, Betty Keator called Stull in Wichita and told him that she had lost her job as a result of the embezzling of the funds of the company. She asked Stull to return the $3800.00 so that she could make restitution and his reply was that he did not have the money; that he had invested it; that he might be able to raise some money and that he would be glad to sell her car for her in an effort to realize some funds. He also told her that she had better not say anything about him in connection with it — that it would only mean loss of his job. As of the time of this conversation Stull had the $3800.00 on deposit in one of his numerous bank accounts. His version -of the conversation was that Keator asked him to keep the $3800.00 for her.— that it was her own money derived from insurance proceeds and that is why he did not come forward with it and remained silent even after it became known that Keator had been stealing company funds. It was not until some time later that Keator admitted to the bonding company that she had delivered the embezzled money to Stull with the exception of $1500.00. This latter was corroborated by the fact that there was a mortgage of $2100.00 on her car notwithstanding the large sums which she had embezzled. Keator’s statements that she had delivered the various sums to Stull were corroborated by bank deposits in various Pueblo and Wichita banks which deposits coincided in time.
The following circumstances, among others, established the guilty knowledge of the defendant.
a. Exclusive possession of the $3800.00 immediately following the theft and retention of it by Stull after he acquired actual knowledge that Keator had been em*299bezzling from the company. This of itself was sufficient to prove knowledge of the money’s stolen character and intent on his part to prevent the owner from again pos-. sessing it.
b. Receipt by Stull of numerous amounts, some of which were substantial, over a period of two years served to build up his knowledge so that in June 1956 (when he received the $3800.00) an innocent state of mind on his part was virtually impossible.
c. The conduct of Stull before, during and after June 1956 tended to prove guilty knowledge rather than his good faith.
(1) The deliveries of the money were surreptitious.
(2) The presence of the auditor caused Stull to be sufficiently anxious so that he called Keator to advise her of this.
(3) He refused to surrender the money afterwards, notwithstanding that he had actual knowledge.
(4) His explanations concerning his belief that the money was acquired honestly are unreasonable.
The jury was entitled to consider the above facts and circumstances and to determine whether or not the defendant had knowledge of the source of the funds and the requisite corrupt intention.
It is next to impossible to prove guilty knowledge in a case of this kind by direct evidence, and more often than not circumstantial evidence is used. As was said by the Court in Goodfellow v. People, 75 Colo. 243, 224 P. 1051:
“Direct proof of knowledge of theft is seldom obtainable, and there were sufficient facts and circumstances, in the instant case, together with defendant’s admissions, from which the jury could find that defendant had knowledge of the theft at the time he received the car.”
To the same effect is Burnham v. People, 104 Colo. 472, 93 P. (2d) 899, wherein it was said:
“ * * * Direct proof of his knowledge that the goods had been larcenously obtained was not necessary. The facts established were clearly sufficient to justify the *300jury’s finding that he knew the goods were stolen. The circumstances considered, they are clearly inconsistent with any reasonable presumption of innocence.”
A more complete declaration of the law bearing on use of circumstantial evidence to prove knowledge in a receiving stolen goods case is found in 45 Am. Jur. 403, 404. Here the author declares:
“ * * * Guilty knowledge may be proved by direct evidence, or, since it is rarely the subject of direct and positive proof, by any surrounding facts or circumstances from which such knowledge may be inferred, including evidence of the accused’s connection with or dealings in other stolen property.
“Evidence of the unexplained possession of recently stolen goods by one charged with unlawfully receiving them is admissible, and is a strong circumstance to be considered with all the evidence in the case on the question of guilty knowledge. Such evidence may be sufficient to warrant a conviction where it is coupled with contradictory statements by the accused as to his possession of such property, with evasive statements and unusual manner of acquisition, with attempts at concealment and the fact that goods were being sold at less than their value, with the possession of other stolen property, and with other incriminating evidence and circumstances. * * * ”
If the majority opinion establishes that the evidence will always be insufficient when the accused denies guilty knowledge it will be henceforth impossible to convict on this charge because there will be few confessions and no direct testimony that the accused had actual knowledge.
A most serious feature of the majority opinion is that it undermines the long standing rule that recent, exclusive possession of stolen property creates an inference of guilt of the offense charged (burglary, larceny or receiving stolen goods) sufficient of itself to justify *301submission of the case to the jury. This principle is supported by a long line of decisions of this Court: Van Straaten v. People, 26 Colo. 184, 56 P. 905; Foster v. People, 56 Colo. 452, 139 P. 10; Collins v. People, 69 Colo. 343, 193 P. 634; Windolph v. People, 96 Colo. 285, 42 P. (2d) 197; Lombardi v. People, 124 Colo. 284, 236 P. (2d) 113; Goodfellow v. People, supra; Sitterlee v. People, 67 Colo. 523, 186 P. 527.
The “recent possession” rule is not varied by reason of the fact that the property is money. See Wharton, Criminal Evidence, Vol. 1, Sec. 204, pp. 410, 411, wherein the author declares:
“It is relevant to prove that following the commission of the crime the defendant had possession of or attempted to dispose of specific articles of property which were identified as belonging to the victim of the crime. The possession by the defendant of large sums of money or valuable property, or the spending of large sums of money, after the commission of the crime is relevant in the prosecution of a crime which is ordinarily committed for pecuniary gain or when such gain may be incidental to the crime, when there is evidence that the defendant did not have or was not likely to have such money or property prior to the time when the offense was committed. Such evidence is admissible even though it may have a tendency of prejudicing the jury, or may indicate the commission of other crimes by the defendant.
“When money is found in the possession of the defendant, it is generally held that it is unnecessary to identify the bills of money as having been the bills which had formerly been in the possession of the victim of the crime, or to trace the source of such money.”
. It seems to me that evidence was not only sufficient to prove guilty knowledge but that it was also sufficient to warrant the inference that Stull was an accessory to the thefts. The jury could have logically inferred that Keator was Stull’s agent; that he controlled her by his personal attentions and possibly by the threat of ex*302posure. Cf. People v. Spinnuzza, 99 Colo. 303, 62 P. (2d) 471; Miller v. People, 92 Colo. 481, 488, 22 P. (2d) 626. This being so, I am persuaded that the majority result is a grave injustice to the People of the State of Colorado.
2. The Question Whether the Court Erred in Failing to Instruct the Jury on Similar Transactions.
In my opinion, there was no error in the court’s refusal to give an instruction as to the limited scope of similar offenses prior to the giving of formal written instructions for these reasons:
a. Defendant waived this point by failing to make a timely demand for such instruction. Objections were not made to this evidence until the prosecution offered to show that defendant had opened several accounts in different banks and the amounts coincided with the amounts which Keator had said she had given defendant. The time for the objection was when the similar offenses took shape, and that was when Keator testified that she gave the several sums to Stull. All of this testimony went in without objection and thus the similar offenses were proven when the defendant, through counsel other than his present lawyers, made the request. Defendant can not assign this failure as error unless it can be said that the court is obligated to give such an instruction on its own motion. Robinson v. People, 114 Colo. 381, 165 P. (2d) 763; Mow v. People, 31 Colo. 351, 72 P. 1069; West v. People, 60 Colo. 488, 156 P. 137. Cf. Thorp v. People, 110 Colo. 7, 129 P. (2d) 296.
b. The course and conduct of the trial is peculiarly the province of the trial judge and the giving or refusal to give such an instruction should be a matter of discretion. 23 C.J.S., Criminal Law, Sec. 961, et seq. It is not good practice to hamstring the trial court by adopting rigid rules and to hold that they must always be applied regardless of circumstances. Conceivably the giving of a limiting instruction could prove prejudicial to the defendant in a case, for example, where there are numerous “similar transactions.” The continuous repetition by *303the trial court that such evidence tends to establish intent could adversely affect the rights of the accused. Moreover, if the trial judge takes the majority opinion seriously he will find himself giving limiting instructions on numerous other subjects. The trial court’s discretion should not be so limited.
c. Neither Jaynes v. People, 44 Colo. 535, 99 Pac. 325, nor Melville, Criminal Evidence, hold the failure to so instruct to be prejudicial error. Today’s decision is therefore innovation. I agree with these authorities that it is desirable practice in a proper case to give timely limiting instructions. I disagree with the majority conclusion that the failure to so instruct is invariably prejudicial error.
3. The Question Whether the Instruction on Similar Transactions was Erroneous.
The instruction which the majority opinion condemns is the trial court’s number 12. It reads:
“You are instructed that there has been testimony introduced here which might have a tendency to show participation by the defendant in offenses other than that charged in the information. You are further instructed that the defendant is entitled to be tried on the charge contained in the information and upon no other, and you are to consider the evidence concerning the activities of this defendant prior to the acts with which he is charged in the information only so far as you deem them explanatory of the events leading up to and surrounding the acts charged in the information.”
The basis for the majority holding that this instruction is erroneous is the use of the term “offenses” rather than the term “transactions.” It is said that this misleads the jury by instructing that the other transactions were in law, offenses. Johnson v. People, 110 Colo. 283, 133 P. (2d) 789. Instruction number 12, supra, is not subject to the vice which was present in Johnson v. People, supra, wherein it was said:
“Whether the transactions admitted in evidence other *304than the one charged were similar, and whether they showed a criminal intent in the transaction made the basis of the charge, or that the latter was a part of a scheme or plan to defraud the county, was for the jury to determine from all the surrounding facts and circumstances of the case, and it was prejudicial error for the court to tell the jury that the other transactions were offenses as a matter of law.”
Here the court had invaded the province of the jury by saying that “there has been testimony submitted in this case as to separate and other offenses than the offense charged in the indictment filed herein.” Thus, the trial judge in the Johnson case had told the jury that the other transactions and the crime charged in the information were offenses, that is, established as such. There was little left in that case for the jury to determine. The Court does not, however, there hold that use of the word “offense” in such an instruction will invariably constitute prejudicial error. No such attempt to instruct the jury to return a verdict of guilty is apparent in the present case. Instruction 12, supra, is very cautious in that it tells the jury that the evidence “might have a tendency to show participation of the defendant.” It could not impress the jury that it was relieved of its duty to determine guilt or innocense. It would, of course, have been better had the Judge used the word “transaction,” but the trial court’s failure to employ it here should not void the proceedings.
The trial was carefully and painstakingly conducted, and no substantial error is apparent. The judgment should be affirmed.
Mr. Chief Justice Knauss and Mr. Justice Moore join in this dissent.