(dissenting).
I dissent. Defendant claims that the evidence is insufficient to sustain the jury’s verdict. His real contention is that Weaver’s testimony, being that of an accomplice, lacks the corroboration essential to sustain a conviction under M. S. A. 634.04. That is the only issue involved.
In the burglary the elevator was broken into and the combination of the safe was destroyed with a hammer. If Weaver’s testimony is true, defendant not only joined in planning the crime but drove his automobile to the elevator and was the one who used the hammer in smashing the combination. The safe, however, could not be opened so as to get at the money. Weaver admits his part in the crime and was, therefore, to be considered an accomplice.1 There is no question that a crime was committed nor can there be any doubt that two persons participated in the burglary for the evidence is clear that two separate and distinct sets of footprints were traced to and from the building. Defendant admitted that he had pressing financial obligations; that Weaver talked to him about burglarizing the “Osborn-McMillan” building and asked him “to go in with him on *424the deal.” He claimed that he refused to join in the crime and told Weaver “if I was going to steal something it would be grand larceny and not petit larceny.” From the evidence it is clear that property stolen in the burglary was found in defendant’s automobile and placed there by the defendant himself. Defendant and Weaver were friends and associates. They had known each other for about three years. Weaver had previously stayed at defendant’s home. Defendant conceded that they were together at St. Cloud on December 81, 1954, the day before the burglary. He also conceded that they were together on January 2, 1955, the day after the burglary, at which time he took Weaver to the Harvey Carroll place. Weaver claimed that he stayed at defendant’s home in Alexandria between those dates during which time defendant’s family was away, and that he left defendant’s home on January 2 because the family was returning. Defendant denied that Weaver stayed with him during that period but it cannot be overlooked that he admitted his family was away at that time and that he took Weaver to Carroll’s place the very day the family returned. And at one time during cross-examination, when defendant was asked whether Weaver didn’t come to his home on the night of December 31, he testified “If he did I would not know nothing about it because I was served a Mickey at the liquor store.”
Weaver testified that following the burglary they immediately drove to defendant’s home where he remained because he knew he was wanted by the authorities on a charge of forgery. He said that defendant then went downtown. Defendant claimed an alibi. He testified that he was at a “beer joint” all afternoon and from there went that night to a show in Alexandria and after the show to a cafe where he had a “beer.” He said that Clyde Collins and his wife drove him home from the cafe. The majority opinion completely ignores that portion of the crucial and devastating testimony given by Mrs. Collins as a state’s witness. She not only testified that defendant told them that he had been at home that evening but that “He said he had been home sleeping and he couldn’t sleep so he decided to take a walk.” This testimony is wholly inconsistent with defend*425ant’s statement given in writing to the police captain and set forth verbatim in the majority opinion as well as his testimony given at the trial concerning his movements the afternoon and evening of the day the crime was committed. It very effectively discredits, if not entirely destroys, his alibi. And the so-called “reliable witnesses” referred to in the majority opinion, as corroborating defendant’s movements on the day the crime was committed, refer to his whereabouts at times of the day about which there is no dispute or any materiality. In his statement to the police captain defendant stated that on the night of January 1, at “Lyle’s,” he “had one beer with Art Affeldt, Gloria Engstrom and a few other” but Miss Engstrom, called as a state’s witness, testified “I didn’t see him in there.” To me it seems obvious that the jury was justified in finding that defendant’s alibi was unworthy of belief.
The 1949 Dodge in which the pliers were found by the officials belonged to the defendant. It was registered in his wife’s name but was used by him. As to the ownership of the automobile he testified, “For technical reasons I had it listed in my wife’s name but it was my money that made the down payment anyway.” But it is unnecessary to concern ourselves with the ownership of the car and whether Weaver and others drove it for there need be no speculation as to how the pliers got into the automobile since defendant admits that he placed them there himself. And there is no question but what the pliers, found in the automobile by the police officials following the burglary, belonged to the Osborn-McMillan Elevator Company. The assistant manager definitely identified them as pliers which he purchased for the company approximately two months before the burglary and stamped them with the company’s initials “OM” himself. Moreover, he testified that he saw them in the elevator on Friday, December 81, 1954; that the elevator was closed on January 1 and 2 and that the pliers were missing on Monday, January 3. Defendant testified that on January 3, 1955, in the presence of Mr. Nylander, he found the pliers on the sidewalk in front of the Shell Cafe and that he placed them in his automobile. The failure of the defendant to produce Nylander as a witness at the trial to *426substantiate Ms claim militates against him. State v. Jansen, 207 Minn. 250, 256, 290 N. W. 557, 560. Defendant’s testimony concerning tbe pliers and tbe manner in which he acquired possession of them is, to say tbe least, unconvincing.
Nor can I agree with tbe reasoning of tbe majority concerning defendant’s conduct pertaining to tbe statement given by him to tbe police captain on January 17, 1955, for to me bis conduct strongly militates against him. Defendant was kept in a cell on one floor of tbe jail and Weaver in a cell on another. Mithun bad tbe run of tbe jail and performed chores on both floors. Mithun, referring to defendant, testified “He banded me a letter and told me to take it down to Weaver and tell him to read it and stick to it.” (Italics supplied.) Weaver corroborated Mitbun’s testimony and denied that it was be who asked for tbe statement. Tbe jury could fairly infer, from what transpired regarding this episode, that defendant wanted to make certain that Weaver would have defendant’s story, as given by him to tbe officials, in tbe hope that bis alibi would stand up and that they could avoid implicating and contradicting each other.
Tbe evidence of defendant’s character and reputation is far from persuasive. Tbe character witnesses are all of one family, trucker friends of tbe defendant, and one of them was an associate of both defendant and Weaver shortly after tbe commission of tbe crime. On tbe issue of defendant’s credibility tbe record shows, by Ms own admission, that be bad been convicted of a very serious crime in Montana. And it should not be overlooked that defendant and Weaver on January á, three days after tbe burglary, left tbe state together.
Nor should tbe affidavit of Weaver, made in prison since tbe conviction, in which be attempts to repudiate bis testimony at tbe trial, be given credence. Tbe record shows that too much of tbe testimony given by him is true to permit it to be disregarded. It seems fair to assume that Weaver, who has quite a criminal record, realizes that be has little to lose and is simply trying to help bis friend escape tbe consequences of bis criminal act.
*427In construing § 634.04 this court has held that the reason for requiring the testimony of an accomplice to be corroborated is that it is the testimony of one admittedly corrupt and there is likelihood that it may have been given in the hope that by turning state’s evidence he may receive clemency.2 There must be corroborating evidence to support the testimony of the accomplice to aid in establishing his credibility. The rule is satisfied, however, if the corroborative evidence in some substantial degree tends to affirm the truth of his testimony and to point to the guilt- of the defendant.3 In State v. Rasmussen, 241 Minn. 310, 313, 63 N. W. (2d) 1, 3, we said:
“* * * It [the corroborative evidence] need not be sufficiently weighty that standing alone it would make out a prima facie case or sustain a conviction. The corroboration may come from the testimony of the defendant himself. Circumstantial evidence may be sufficient to corroborate the testimony of an accomplice. The entire conduct of the accused may be looked to for corroborating circumstances, and if from those circumstances the connection of the accused with the crime may fairly be inferred, the corroboration is sufficient.”
This court also stated in State v. Zoff, 196 Minn. 382, 383, 265 N. W. 34, 35:
“It appears to be well settled law that possession of stolen property is a circumstance from which guilt may be inferred. [Citing authorities.]”4
*428The unsatisfactory nature of the defendant’s testimony and its contradiction by other witnesses are corroborative in character within the meaning of § 634.04.5
Section 634.04, requiring corroboration of the testimony of an accomplice in order to sustain a conviction, was enacted as a shield to protect the innocent and not as a sword to be used against society in the hands of the guilty. One of the all-too-common enemies of decent citizens is the thief who breaks in and plunders in the nighttime while respectable people are asleep. The statute should not be given a strained construction so as to afford protection to the guilty as I believe is being done here. When considered in the light of the well-established principles governing the application of § 634.04, it seems clear to me that the testimony of Weaver was sufficiently corroborated by other evidence tending to convict the defendant of the commission of the offense to satisfy the statute and that the evidence as a whole was amply sufficient to justify the jury in convicting the defendant. This is not a case, as I see it, in which there should be a new trial in the interests of justice for it appears to me that justice has been accomplished.
State v. Elsberg, 209 Minn. 167, 295 N. W. 913.
State v. Rasmussen, 241 Minn. 310, 63 N. W. (2d) 1; State v. Smith, 144 Minn. 348, 175 N. W. 689; State v. Jackson, 198 Minn. 111, 268 N. W. 924; State v. Scott, 203 Minn. 56, 279 N. W. 832.
State v. Rasmussen, 241 Minn. 310, 63 N. W. (2d) 1; State v. Briggs, 122 Minn. 493, 142 N. W. 823; State v. Christianson, 131 Minn. 276, 154 N. W. 1095; State v. Elsberg, 209 Minn. 167, 295 N. W. 913.
See, also, Underhill, Criminal Evidence (4 ed.) § 628, where, relying upon and citing decisions from 26 states, it is stated: “If it appears that a burglary was in fact committed, the possession by the accused [of stolen property] is a circumstance from which, in connection with other evidence, the jury may infer that he committed it.” See, 22 C. J. S., Criminal Law, § 597: “In many jurisdictions it is held that the possession of stolen prop*428erty may raise an inference or presumption of guilt in prosecutions for burglary, larceny, and robbery, * *
State v. Brin, 30 Minn. 522, 16 N. W. 406.