(dissenting). Defendant was a rear-seat passenger in an automobile stopped late at night by police as it was traveling on a highway in Oscoda. The police made the stop because the automobile resembled one thought to be involved in the break-in of a lumberyard the night before. The owner of the automobile was driving and another passenger was in the front seat. With consent the police searched the automobile and found two pry bars under the driver’s seat. The police retained the pry bars but released the automobile and its occupants.
*98Later it was discovered that an auto parts store in Oscoda had been broken into the same night the automobile was stopped. Testing by the state police crime lab determined that one of the pry bars seized by police had been used to rip sheet metal on the auto parts store. In a sandy alley behind, but not immediately adjacent to the store, three sets of footprints were observed. No effort was made to take molds of the footprints, nor were any fingerprints obtained from the store or the pry bar. The exact time of the break-in was not established. This summarizes the case made against defendant.
It is incumbent upon the prosecution to present more than "some evidence” that indicates defendant committed the crime. The prosecution must present evidence which, if believed, proves beyond a reasonable doubt that defendant committed the crime charged. While this can be done by the introduction of evidence entirely circumstantial, merely to place defendant in suspicious circumstances cannot justify a finding of guilt. In People v Spann, 3 Mich App 444, 454; 142 NW2d 887 (1966), the court quoted from People v Millard, 53 Mich 63, 70; 18 NW 562, 564 (1884):
"In every criminal case the burden is throughout upon the prosecution. Whatever course the defense deem it prudent to take in order to explain suspicious facts or remove doubts, yet it is incumbent on the prosecution to show under all circumstances, as a part of their own case, unless admitted or shown by the defense, that there is no innocent theory possible which will, without violation of reason, accord with the facts. ” (Emphasis in Spann.)
Numerous other cases may be cited which set forth the rule that, in order to obtain a conviction *99upon circumstantial evidence, the prosecution must present evidence that not only points to defendant’s guilt but also negates any reasonable theory of innocence. E.g., People v Morrow, 21 Mich App 603; 175 NW2d 523 (1970), People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975).
In People v Johnson, 4 Mich App 205; 144 NW2d 646 (1966), Chief Justice Kavanagh, then a member of this Court, applied this standard of proof in a case very similar to the one now before us. In Johnson, the defendant was arrested at the scene of the crime by police officers responding to the report of a break-in at a gasoline station. Near him was found a screwdriver, later identified as having been taken from the station. Finding no other evidence against defendant, this Court reversed his conviction for breaking and entering.
In other cases, this Court has stated that evidence of mere possession of stolen property does not, standing alone, justify a finding of guilty to a charge of breaking and entering. E.g., People v McDonald, 13 Mich App 226; 163 NW2d 796 (1968), People v Moore, 39 Mich App 329; 197 NW2d 533 (1972). People v Olson, 65 Mich App 224; 237 NW2d 260 (1975), upheld the denial of a directed verdict because the evidence showed not only that defendant when arrested was in possession of stolen goods, but also that he possessed burglary tools, one of which was directly linked to the crime.
Here, the crux of the prosecution’s case against defendant was his proximity to, not even possession of, the pry bar used in the break-in. The evidence appears to be even weaker than that found insufficient in Johnson, supra, for there *100defendant was arrested outside the station broken into. Here, the automobile was stopped some distance away from the auto parts store. Even the addition of the testimony that three sets of footprints were found in the sand not far from the auto parts store does not bring the prosecution’s proofs to the necessary level. This evidence does little, if anything, to link defendant to the break-in.
While it is true that a motion for a directed verdict of acquittal will be granted if, on any material element of the crime, there is no evidence, a denial of such a motion requires the court to determine that the evidence produced, viewed in the light most favorable to the prosecution, would justify a reasonable man in concluding all elements of the crime were established beyond a reasonable doubt. People v Royal, 62 Mich App 756; 233 NW2d 860 (1975). Unless there is "evidence upon which a jury could predicate a finding of guilty”, People v Vail, 393 Mich 460, 463; 227 NW2d 535 (1975), a directed verdict should be granted.1
The circumstantial evidence presented by the prosecution does not exclude reasonable theories of defendant’s innocence, and is therefore insufficient evidence upon which to "predicate a finding of guilty” to the charge of breaking and entering and, a fortiori, to the charge of possession of burglary tools. The trial court erred in denying defendant’s motion for a directed verdict. I would reverse defendant’s convictions.
The proper classification for defendant’s motion should be as a motion to dismiss, under GCR 1963, 504.2. See People v DeClerk, 58 Mich App 528, 530, n 2; 228 NW2d 447 (1975). A trial court faced with a motion to dismiss and sitting as a trier of fact is not as limited as is a trial court presented with a motion for a directed verdict in a jury trial. Our review of the denial of defendant’s motion proceeds on the assumption that the trial court, sitting without a jury, viewed the evidence in a light most favorable to the prosecution.