dissenting:
I consider the evidence sufficient to have proved the guilt of the defendant beyond a reasonable doubt. The direct evidence is clearly sufficient to prove that those of defendant’s companions who went into the station building committed felony theft. Direct evidence is also sufficient to prove that defendant aided those companions by driving them to the Owens station, occupying the time and attention of the sole attendant by purchasing a small amount of gasoline, waiting until the gasoline had been placed in the car’s tank and then requesting a check of both the oil and the transmission fluid and finally driving them from the station. The evidence is purely circumstantial only on the issue of defendant’s intent in doing these things.
The circumstances of defendant’s conduct on the driveway are also some evidence of a specific intention on his part to distract the attendant so that the theft could take place. Motorists seldom request a check of transmission fluid with the purchase of gasoline, particularly only a small amount of gasoline. When service is requested incident to a purchase of gasoline, the service is usually requested at the time the gasoline is ordered. According to the attendant, when he did furnish the requested service to defendant, the defendant seemed to be standing “in front” of the attendant at all times. Although the statement was somewhat ambiguous it tends to show that the defendant’s movements were such as to keep the attention of the attendant. Without more evidence, however, these circumstances were insufficient to prove that defendant intended to aid his companions in this theft.
That further evidence is supplied by the circumstances under which defendant happened to be at the service station. The jury could reasonably have believed that the key found in the car was the key used to open the padlock on the cash drawer and was also a key that had been stolen from the station on a day prior to the instant theft. If the jury believed this to be true, it could also believe that at least one person in the Thunderbird automobile had the key in his possession as that car was being driven to the Owens station and had a prior intention to commit the theft. The attendant identified defendant as the person who drove the car to and from the station and requested and paid for the gasoline and service received. Other evidence indicated that defendant was also the owner of the car. Ordinarily he would have been the person to determine when and where to pinchase gasoline and seek service for the car. If he decided to go to the Owens station and did not know of the intent of at least one person in the car to attempt a theft at the Owens station and did not intend to aid that theft, his deciding to drive the car to the very station where the theft was intended would be an unlikely coincidence. If a person who did know of the intended theft persuaded him innocently to go to the Owens station, it would be equally unlikely that that person could also persuade defendant although he was buying only a small amount of gasoline, to also request time consuming service and to wait until the gasoline was in the tank before requesting the service.
I consider the combination of the circumstantial evidence that the key used to unlock the padlock on the cash drawer and the circumstantial evidence of defendant’s conduct on the driveway sufficient for the jury to have determined beyond a reasonable doubt that defendant specifically intended to aid others in committing a theft at the Owens station. The jury could properly have determined that any other explanation would be based upon coincidence so unlikely that it could not be considered a reasonable hypothesis.