Appellant and three codefendants were charged with robbery of the Brockwood Exxon Service Station and Church’s Fried Chicken on 12th Street in Little Rock, Arkansas. The three codefendants pleaded guilty before the trial date of June 30, 1978. Appellant’s motion to sever the two counts of robbery because no scheme or plan would be shown by the state was denied.
The trial court granted appellant’s motion for dismissal of the charge relating to the Exxon Station but permitted the charge relating to Church’s Fried Chicken to go to the jury.
Upon completion of the state’s case appellant moved for a directed verdict relating to the Church’s Fried Chicken incident. The motion was denied. The appellant did not introduce any testimony and rested after the motion was denied. The jury found appellant guilty and fixed his punishment at 6 years’ imprisonment.
On appeal two points are argued: (1) The court should have granted a severance of the charges; (2) There was insufficient evidence to support the conviction.
The only evidence presented by a codefendant was that they planned to rob the Exxon Station and when it produced only $5 they subsequently decided to rob Church’s Fried Chicken. The testimony relating to the robbery of the Exxon Station by David Zimmerman was that he saw four people in a car at the Exxon Station. He could not identify any of them nor could he tell if the people were black or white. Mr. Baker, the victim at the station, saw two people with stockings over their heads. He didn’t see the other two people and could not identify any of them or the vehicle they were in. Appellant did not testify nor did he give a statement relating to the Exxon Station robbery. Appellant’s statement to the officers with reference to the Church’s Fried Chicken robbery was that he asked the codefendants to take him home. “I asked them to take me home, and on the way home I asked them to stop by Church’s Chicken, and they stopped at 12th and Fair Park. I bought a box of chicken and a coke. We parked on the side of the business. I went back to the car. They had a shotgun and a rifle out and they said that they were going to rob the place. I told them to take me home first. They said, ‘No. As long as we are here, we just as well do it.’ They said I wouldn’t have to get out of the car. I stayed in the car and Billy stayed in the car and got under the steering wheel.”
Was the evidence sufficient to sustain a conviction of aggravated robbery of Church’s Fried Chicken? Again the codefendant testified that the four of them decided to go rob the Exxon Station and did. They planned to split the money four ways. He also stated there never was a plan to rob another place until after the waterhaul at the Exxon Station. He testified he had pleaded guilty to the robberies of both places and had been sentenced. Other evidence tended to show the robbery occurred but none of it identified the appellant. The only other evidence was the statement of appellant wherein he steadfastly denied any part of the Church’s Fried Chicken robbery. The only fact possibly connecting him with it was that he was there. In his statement appellant insisted he requested the codefendants to drive him home after he found out they planned the second robbery.
The question of evidence necessary to corroborate an accomplice’s testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant’s guilt to the jury. O’Neal v. State, 192 Ark. 1178, 96 S.W. 2d 780 (1936); Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943). The corroborating evidence must tend to connect the defendant to the commission of the offense. It is not sufficient to show the offense was committed and the circumstances thereof. Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969). We stated in Dunn & Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974):
Aside from the testimony of the accomplice Roberts, there is no other testimony at all linking the appellants with the robbery of Mr. Corley. The fact that Dunn & Whisenhunt were seen riding in the same automobile with Roberts, as related under the facts and circumstances of this case, is not sufficient corroboration to sustain their conviction.
We make the same statement regarding the facts and circumstances in this case. Appellant had the additional burden of having been exposed to the robbery evidence for which he was acquitted. We still adhere to the principle that a man is innocent until proven guilty. The mere presence of a person at the scene of a crime is not proof of his guilt, otherwise the customers or employees at Church’s Fried Chicken might be in appellant’s place.
Under the circumstances of this case, we are unable to find any corroborating evidence to support the codefendant’s testimony.
This disposition makes the severance issue moot.
Reversed and dismissed.
Harris, C.J., and Fogleman and Byrd, JJ., dissent.