concurring in the dissent of ROSE, J.
I concur in the dissent of my Brother Rose and would add only this brief comment. The majority concede that possession of stolen property is alone insufficient to convict but accept it as a strong circumstance tending to show guilt and requiring only slight corroborative evidence of other inculpatory circumstances. Those other circumstances are found in the testimony of the defendant himself who, after his motion for acquittal made at the close of the State’s case had been denied (a decision which as I view it the majority opinion inferentially condemns as erroneous), elected to take the stand and attempt an explanation of his possession of the stolen property. All testimony of an inculpatory nature, that is, that he was in Casper, that he was looking for hallucinogenic drugs, that he left Casper suddenly and at a strange hour (in other words, evidence showing opportunity, motive, and flight) is accepted as corroborative. Testimony of an exculpatory nature, that is, relating to the circumstances under which he claimed to have obtained the stolen goods, is rejected as a “whole improbable and unsatisfactory explanation of possession” and this unsatisfactory explanation “is corroboration and whether he made a satisfactory explanation was for the trial court.”
I confess a feeling of disquietude that the conviction here should rest upon testimony of the defendant so that except for his having taken the stand the State would not have proved the necessary elements of the crime with which defendant was charged.1 I also find it anomalous that defendant is to be believed in those matters which are inculpatory and his story rejected as to those matters which were exculpatory. The point of this dissent, however, is that since the essentiality of his testimony is admitted, and since the trial judge himself has said that his credibility goes to the heart of the matter, how can we presume that the trial judge disregarded the question and answer which he improperly admitted? Where the testimony of the defendant was the sine qua non of the conviction it seems much too dangerous to me to assume that the trial judge was uninfluenced by this procedure.
I would also expressly disclaim as a declaration of this court the two remarks with respect to the motion in limine and invocation of the Fifth Amendment.
. I am troubled by the rule announced by this court in Neel v. State, Wyo., 452 P.2d 203, 204 (1969) that error in denying a motion for acquittal made at the close of the State’s case is waived by presentation of evidence by the defense which, as said by the majority, “fleshed out and fattened” the State’s case. See State v. Bacheller, 89 N.J.L. 433, 98 A. 829 (1916); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963); 2 Wright’s Federal Practice and Procedure, Criminal, § 463, p. 247; and Comment, The Motion for Acquittal: A Neglected Safeguard, 1961, 70 Yale L.J. 1151. However, this does seem to be the majority rule and I am disinclined to tilt at windmills in this dissent.