dissenting.
I would reverse.
To my way of thinking this case is controlled by Denham v. State, 144 Ga. App. 373 (1978). The facts in the Denham case, supra, were as follows:
Denham was observed sitting in the driver’s seat of an automobile and acting nervous. The policeman observing him called to others to keep surveillance on the car. Shortly thereafter a call came in that the car was moving in his direction. When the officer fell in behind he noticed there was now a passenger in the car. He turned on the siren to stop the car to check identities. When the officer sounded the siren the driver accelerated and the passenger turned around, looked at the officer following, then turned toward the door window and began stuffing something through the opening for the window. The car continued for four blocks, and without stopping, turned right at a stop sign, then pulled over to the curb. When the officer looked into the space between the door and window glass he saw plastic bags. He removed the door paneling and found twelve small bags of heroin.
In comparing the above facts with the facts in this case before the court, I find a remarkable similarity as to proof.
*450Lunsford was a friend of Linda Gail Campbell, a co-indictee in this case. Campbell and her husband were separated and were in the process of getting a divorce. Having her three children living with her, Campbell suffered financial difficulty. To obtain money, Campbell collaborated with a friend, Kim Whiten, who was a cashier at Richway in Cobb County. On occasions prior to April 29, 1976, Campbell selected merchandise at Richway in Cobb County, and with Whiten’s cooperation, paid substantially less than the market value for it. She would then go to another Richway store and exchange the merchandise for money. She testified that she did this because she was not able to care for her children and herself otherwise.
On April 29, 1976, Campbell came to Richway in Cobb County, loaded a shopping cart with over $200 worth of merchandise, and checked out at Whiten’s counter paying less than $5 for the merchandise. On this occasion, Campbell borrowed Lunsford’s car to go to Richway. Despite Campbell’s insistence that Lunsford not go along with her, Lunsford did go because he had been having mechanical trouble with his car, and he did not think Campbell should go off in the car alone. Campbell and Whiten both testified that Lunsford was not aware of their shoplifting scheme, although, Campbell said, her husband did know about it. Likewise, Lunsford testified that he knew nothing about this type of shoplifting operation and was innocent. On the morning of April 29, 1976, someone called the Richway store in Cobb and tipped them off that a man and a woman would be in there that day to shoplift in the manner described above. Campbell testified that the tipster had to be her husband, as he and she were the only two people other than Whiten who knew about it. She believed that he was mad at her because of her friendship with Lunsford, and he was therefore out to get them. Campbell and Lunsford went into Richway and shopped around the store, loading the cart with various kinds of merchandise. None of it was for Lunsford, and the evidence showed he helped select some albums and held up some blue jeans at one place. Otherwise, all he did was push the cart. Campbell checked out at the counter where Whiten worked, handing her $5 *451for the merchandise valued at over $200, and receiving some change in return. While this happened, Lunsford was at the rear of the cart, to the side of the cash register and Campbell was in front of the cart. Lunsford stated that he could not see what was registered on the cash register and he did not know what amount was rung up for the sale. The merchandise was bagged and placed in the cart with Lunsford’s assistance. Lunsford pushed the cart out the door, and he and Campbell were then arrested. Lunsford, Campbell, and Whiten maintained from the beginning that Lunsford was innocent and did not know that the two women were working such a deal; Campbell said she explained to Lunsford that she was purchasing the merchandise with her income tax refund. In the course of her being questioned, Campbell stated about Lunsford "that she didn’t want him to go to jail,” and then she went on to say that "he was on probation from Reidsville.”
Both Campbell and Whiten pled guilty. Campbell was sentenced to two years probation and fined $250. Lunsford was sentenced to three years, one to serve and two on probation.
The evidence of Lunsford’s guilt is circumstantial. The state did not produce any direct evidence that he was a party to or knew of the scheme that Campbell and Whiten were using to steal the merchandise belonging to Richway. The only direct evidence produced by the state was the statement made by Campbell, which, under the circumstances, was logical and is proof of nothing but the fact he was present at the scene of a crime. The fact that Lunsford pushed the cart (he said his leg was just out of a cast and he used the cart to help him walk) and placed some items in the cart and helped unload it is not an unusual procedure for anyone helping another shop, or for a man helping his girl friend. Lunsford’s mere presence under these circumstances does not make him guilty of a crime even though Campbell was committing one. Brackett v. State, 142 Ga. App. 601 (236 SE2d 689) (1977); Sweat v. State, 119 Ga. App. 646 (168 SE2d 654) (1969). The fact that a tipster, possibly Campbell’s husband, reported the pending crime to Richway is no proof that Lunsford was in on the illegal taking.
*452Code § 38-109 states, "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Hodges v. State, 103 Ga. App. 284 (118 SE2d 858) (1961) holds that evidence showing no more than the defendant’s association with persons committing a crime, his suspicious behavior, and his efforts to avoid arrest, is not sufficient to support a conviction. See also State v. Greeson, 237 Ga. 193 (2) (227 SE2d 324) (1976) where the Supreme Court held that proof that one defendant transported a co-defendant, who was in possession of drugs, to the place where a drug transaction occurred was not sufficient to support a conviction, and it was therefore error to deny the first defendant’s motion for a directed verdict.
As this court stated in Denham v. State, supra, 375, "that testimony is not sufficient to establish appellant’s knowledge of the presence of the heroin”; similarly, I believe in this case that the evidence was not sufficient to establish that Lunsford knowingly participated in the theft of the merchandise from Richway, and, under the holding in Denham, the conviction should be reversed.
The majority in Division 1 of its opinion states that, "under Code § 6-802 even though he did not directly commit the crime he could be indicted, tried, convicted and punished.” But even under this principle, the state’s evidence must establish, at the minimum, proof of indirect involvement in the crime. The only proof of either direct or indirect involvement was circumstantial, and this circumstantial evidence, though consistent with the hypothesis of guilt, was not sufficient to exclude every reasonable hypothesis of innocence. For the evidence established a very reasonable hypothesis which would explain Lunsford’s conduct; i.e., he unwittingly and unknowingly accompanied Campbell on her discreet ■shoplifting adventure. For this reason, I believe it was error to deny Lunsford’s motion for directed verdict of acquittal.