dissenting. I disagree with the majority opinion that finds sufficient evidence to support the defendant’s conviction of the charges relating to the robbery of the Gas Land service station in Waterford on February 23, 1976.
The evidence principally relied upon by the majority, as well as the state, may be classified as follows: (1) testimony of his friend Lawrence Thompson, claimed to implicate the defendant in the Gas Land rob*50bery; (2) similarities in the modus operandi used in both the Gas Land crime and the FISCA attempted robbery, for which the defendant’s guilt is not questioned on appeal; and (3) admissions of the defendant made in his conversation with another of his friends, Thomas Barto.
Thompson, who had pleaded guilty to both the Gas Land and FISCA crimes, testified that he committed both crimes in the company of David Colbert, a longtime friend from New York, where Thompson also resided. He denied that the defendant was involved in either offense. The majority opinion contends that, since the jury found upon sufficient evidence that the defendant, not Colbert, was Thompson’s accomplice in the FISCA robbery attempt, it can reasonably be inferred that the defendant, not Colbert, also participated with Thompson in the Gas Land robbery, because in both instances Thompson named the same person as his companion. It is clear, of course, that the jury had the right to disbelieve Thompson’s testimony and did so. We have frequently held, however, that a trier cannot make an affirmative factual finding from testimony that has obviously been rejected. State v. Mayell, 163 Conn. 419, 426-27, 311 A.2d 60 (1972); Marquis v. Drost, 155 Conn. 327, 332, 231 A.2d 527 (1967); Panicali v. Connecticut State Board of Labor Relations, 147 Conn. 344, 348, 160 A.2d 903 (1960). “While it would be within the province and right of the trial court to discredit and reject all or part of [a witness’] testimony or to adopt, as true, one of two or more conflicting statements made by him, this privilege does not extend to the finding of a fact, contrary to that to which he testifiéd . . . .” Meagher v. Colonial Homes Co., 109 Conn. 343, 347-48, 146 A. 609 (1929). “ ‘Facts cannot be established by not believing witnesses who deny them.’ Beers v. Prouty & Co., 203 Mass. 254, 257, 89 N.E. 557 [1909] . . . . ” State v. Poplowski, 104 *51Conn. 493, 495,133 A. 671 (1926). These principles are clearly violated by the majority’s reliance upon Thompson’s testimony that it was Colbert, not the defendant, who participated with him in both crimes as support for the defendant’s conviction in the Gas Land robbery.
The similarities in the two crimes that are also relied upon by the majority are readily explained by the fact that Thompson admittedly participated in both and appears to have been the dominant personality. There are no distinctive features common to both crimes that implicate the defendant in the Gas Land robbery. Under these circumstances the similarity of the modus operandi used in both offenses lends no support to the inference that, because the defendant participated in the FISCA incident, he also joined in the Gas Land robbery.
The remaining evidence relied upon by the majority consists largely of the testimony of Thomas Barto concerning his conversation with the defendant a few days after the FISCA robbery attempt. The defendant’s request that Barto get rid of the slaphammer, because “it had been used to steal a car in a robbery,” which Barto assumed referred to “the Gas Land and FISCA,” indicates at most some knowledge of the Gas Land robbery on the part of the defendant, but not his participation in that crime. It cannot be assumed from the defendant’s desire to dispose of the slaphammer after the FISCA affair, in which he had accompanied Thompson, that he had also been Thompson’s companion in the Gas Land crime. Barto on direct examination by the state testified that he could not recall what the defendant had said about Gas Land.1 The affirmative answer Barto gave on redirect examination to the question, “Mr. Carter told you about these — about his involvement in these two robberies on that afternoon, *52was that your testimony?” viewed in the light of his previous testimony of inability to recall the conversation about Gas Land, is at best ambiguous. It certainly cannot be construed as an admission by the defendant that he was involved as a participant in both crimes, as the majority opinion assumes. A finding of guilt in a criminal case can hardly rest upon such a slender reed.
The other evidence cited in the opinion, the defendant’s association with Thompson, who had stayed at his apartment, his handling of the shotgun in the apartment about the time of the Gas Land robbery, his knowledge that Thompson had bought a slaphammer and that such a device could be used for stealing cars, falls far short of indicating that the defendant engaged in the Gas Land crime. The inconsistencies in his statements to the police, which the majority rely upon as “consciousness of guilt,” are explicable on the basis of his guilt of only the FISCA attempted robbery. They justify no inference of his participation in the Gas Land crime.
“To warrant a judgment of guilty the evidence must be such as to establish the guilt of the accused beyond a reasonable doubt, and any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused, must prevail.” State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 (1929). The conclusion of the majority upholding the defendant’s conviction of the Gas Land robbery cannot, in my judgment, be reconciled with that standard. Accordingly, I dissent.
Barto testified as follows about his conversation with the defendant a few days after the FISCA attempted robbery on March 1, 1976:
“Q. And do you recall what was said?
*52“A. About the Gas Land, I don’t remember.
“Mr. Wilensky: I’m sorry. I didn’t get the last part.
“The Court: Read it back. Sir, keep your voice up, please, Read it back. (Answer read by reporter.)
“By Mr. Hurley:
“Q. Did you say you did have a conversation with Mr. Carter but you don’t remember what was said about it, is that correct?
“A. Yes.”