dissenting.
I respectfully dissent, agreeing with the opinion expressed by Donnelly, J., in his dissent that the evidence in this case is insufficient to support the judgment of conviction. As my reasons therefor, I adopt the following portion of the opinion written by Flanigan, J., for the court of appeals, Springfield district, reversing the conviction and remanding the case.
On the point as to the insufficiency of the evidence to support the conviction Judge Flanigan said, omitting direct quotation marks:
“The presence of the accused at the place of the commission of a criminal offense may be considered along with other incriminating evidence to determine if the total circumstances raise a reasonable inference that the accused was a participant or an aider or abettor in the crime. . . . Evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction . . Even in cases where the evidence is wholly circumstantial, the evidence tending to support the verdict must be considered as true, contrary evidence must be disregarded, and every reasonable inference in support of the verdict must be indulged.” State v. Cobb, 444 S.W.2d 408, 412 (Mo. banc 1969).
“Stolen property found in an automobile in which the defendant is a passenger near the scene of a burglary is admissible against the defendant at his trial for burglary without showing that the defendant had any interest in or right to possession of the automobile. ... An inference of guilt is permissible from the unexplained possession of property recently stolen in a burglary and the inference exists both as to the offense of burglary and of stealing.” Cobb, supra at 414.
*191“The possession of recently stolen property which will support an inference of guilt may be a joint possession of the accused and others and such possession need not be separated from all possession by others.” Cobb, supra at 412. On the same page it is said: “The bulk and nature of stolen property has a bearing on the manner in which it may be possessed.”
The evidence in the case at bar would support the following findings:
1. Between 2:03 and 2:48 a. m. on January 13,1975, forcible entry to the dress shop was gained through the front door and 72 items of ladies’ apparel were taken therefrom. The fact that “some quarters” were found lying on the floor after the discovery of the burglary would support the inference that the burglars (or burglar) were in haste.
2. At 2:49 a. m. a Pontiac automobile driven by one Riley and occupied by the defendant and another person made a hasty and suspicious departure from the vicinity of the dress shop.
3. The trunk of the Pontiac, which was locked, contained the stolen merchandise and some tools which could have been used to effect the entry.
The evidence, and the inferences therefrom, may be adequate to show that the defendant was in the vicinity of the dress shop when the offenses of burglary and larceny were committed, but the issue is, do they “fairly show any form of affirmative participation by the defendant in the crimes”? Cobb, supra at 412.
In State v. Irby, 423 S.W.2d 800, 803 (Mo.1968) it is said: “The most that can be said for the state’s case is that it places defendant at the scene of the crime immediately prior thereto, in the company of one who apparently was directly implicated; that it demonstrates that defendant had an opportunity to participate in the commission of the crime and reveals him in very suspicious circumstances. This, however, is not enough to sustain the state’s burden of establishing defendant’s guilt, either as a principal or as an aider and abetter.” If the words “prior thereto” be changed to “thereafter” that statement describes the facts at bar.
It is true that a person who aids and abets the commission of a criminal offense is guilty as a principal without a showing of conspiracy. State v. Reed, 453 S.W. 946, 948[1] (Mo.1970). It is also true that the presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting and that presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Reed, supra at 948[2-6].
However, the mere presence of the accused at the scene of the crime, coupled with an opportunity on his part to have committed it, will not suffice to support a conviction. State v. Allen, 420 S.W.2d 330, 333[3] (Mo.1967). Also insufficient is the combination of presence at the scene and flight therefrom. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Minor, 531 S.W.2d 101, 102[2] (Mo.App.1975).
Here the evidence showed the presence of the defendant in the vicinity of the burglary during, or at least shortly after, its commission. Defendant was in the same vehicle with two other persons, one of whom was driving the vehicle in a suspicious manner. The vehicle contained the stolen merchandise. But whether defendant remained in the vehicle during the commission of the offense, aloof from their perpetration, or whether he actively participated therein remains open to speculation.
There is of course no direct evidence that the defendant participated in the burglary or the larceny. There is no showing whether the crimes were committed by only one person or by more than one person acting in concert. There was no showing that the burglary and larceny could not have been accomplished by one person acting alone.
Who forced open the door? Who took the stolen goods? Who placed them in the trunk? Who locked the truck? Who possessed the key to the trunk? Who was the owner of the Pontiac? These questions remain unanswered.
*192In support of its assertion that the evidence was sufficient to support the conviction, the state places its principal reliance upon Cobb, supra. In Cobb the court upheld the conviction of the defendant for burglary and stealing. A drug store was burglarized at night and several (“a number of”) bottles containing prescription drugs were stolen. The police observed a Pontiac automobile leaving the vicinity of the drug store. The Pontiac was moving slowly with its lights off. As the police ear approached, the Pontiac “accelerated and was driven rapidly from the parking lot. As it turned off on Limit Avenue the rear end ‘fishtailed’ and the car skidded into a ditch.” The defendant was a passenger in the Pontiac, occupying the right front seat. The missing bottles were found on the floor behind the right front seat. The evidence showed that it was necessary to push the front seat forward in order to enter or leave the back seat.
Defendant Cobb testified that he was asleep in the back seat. The court pointed out that the jury did not believe “the defendant’s story that he was asleep during the din that must have attended the breaking of the large window of the drug store with a 10-pound metal milk carrier approximately 20 feet from the automobile, the disturbance of depositing the stolen drugs in the rear portion of the [Pontiac], and the unusual movements of rapid acceleration, fishtailing, and skidding of the car.”
In Cobb the court said at 414, “[w]e hold under all of the evidence and circumstances in this case that the defendant jointly with others had actual and exclusive possession of the merchandise stolen from the drug store.” (emphasis added). .
Although this case bears some factual resemblance to Cobb, supra, there are some dissimilarities which render Cobb non-controlling. In Cobb the stolen merchandise was found by the officers on the back floor behind the right front seat occupied by the defendant. The court pointed out that it was necessary to move the front seat, a “bucket seat,” in order to gain access to that area. In view of the state of the stolen articles in Cobb, it is reasonable to infer that the defendant must have moved the seat to permit their placement in the vehicle or he must have been outside the vehicle when they were placed therein, either inference being inconsistent with Cobb’s testimony.
Here, however, the stolen merchandise was in the locked trunk of the Pontiac driven by Riley. There is no showing that the defendant owned the Pontiac or that he had any type of interest in it. There is no showing that the defendant was ever in possession of the key to the trunk.
The dominion which Cobb had over the stolen merchandise and the extent to which he possessed it were greater than the dominion, if any, which this defendant had over the contents of the trunk.
In the following cases evidence that the defendant was present as a passenger in an automobile, the locked trunk of which contained recently stolen merchandise, was insufficient to implicate the passenger in the larceny thereof: United States v. Mallory, 460 F.2d 243 (C.A.10 1972); People v. Malone, 1 Ill.App.3d 860, 275 N.E.2d 236, 237[1] (1971); People v. Evans, 24 Ill.2d 11, 179 N.E.2d 657, 659[2, 3] (1962); State v. Andrae, 83 Ariz. 356, 321 P.2d 1021 (1958); Anno. 51 A.L.R.3d (Burglary — “Exclusive” Possession) § 15, p. 727.1
*193In drug possession cases a passenger in an automobile has been held not to be in possession of the contents of a locked trunk.2
Unlike the situation in Cobb, it may not properly be said, under the evidence here, that the defendant “jointly with others had actual and exclusive possession” of the merchandise.
In Cobb the defendant, at the trial,3 told an unbelievable story with regard to his conduct at the scene. Here the defendant did not testify.
In Cobb there was evidence that the defendant and the other occupants of the vehicle had spent considerable time together on the day before the burglary and had done extensive traveling together, circumstances suggestive of collective enterprise. There is no evidence here concerning the prior association of the defendant with the other two occupants of the Pontiac.
So far as the instant record reflects it was at least possible that the defendant remained seated in the front seat throughout the commission of the offenses by one or both of his companions, doing nothing that constituted “consciously sharing” in the crime or “seeking by his action to make them succeed” or “associating himself with the venture in some fashion” or otherwise “affirmatively participating” therein, as required by Irby, supra. See also State v. Miller, 536 S.W.2d 524, 527[3-5] (Mo.App.1976).
This court is not unmindful of the fact that the instant crimes were committed in the dead of night, in an area where no stores were open. It is speculative whether or not defendant was engaged in any legitimate enterprise at that time and in that place. It may well be that he was offering aid to the burglar or burglars. Indeed it may be that he was the burglar and the only one. But “a verdict based on suspicion, conjecture, or surmise, however strong, is not sufficient to permit a criminal conviction.” State v. Morse, 515 S.W.2d 608, 610[5] (Mo.App.1974).
It was not incumbent upon the defendant to justify his presence or explain his conduct. On the state rested the burden to prove his guilt beyond a reasonable doubt and the evidence here fails to meet that standard.
. In Commonwealth v. Franks, 235 Pa.Super. 327, 340 A.2d 456 (1975), a burglary conviction was upheld by a divided court where defendant was a passenger in a speeding automobile found three blocks from a burglary within 30 minutes of its commission. The stolen merchandise was found in the trunk which was open about a foot and a half. There was also evidence that either defendant or one of his two companions dropped a watch which had been stolen in the burglary.
See also Bury v. State, 2 Md.App. 674, 236 A.2d 751 (1968) and Hale v. State, 5 Md.App. 205, 245 A.2d 908 (1968), in each of which defendant was a passenger in a vehicle seen at the scene, the locked trunk of which contained merchandise taken in a recent burglary. In each of these cases, however, there was evidence of active participation at the scene by the same number of people later found in the vehicle.
*193Other cases upholding a burglary conviction where the defendant was a passenger in an automobile found near the scene of a recent burglary, where the stolen articles were found inside the vehicle as distinguished from being in its locked trunk, include State v. Johnson, 447 S.W.2d 285 (Mo.1969) and State v. Miller, 485 S.W.2d 435 (Mo.1972).
See also State v. Ramsey, 368 S.W.2d 413 (Mo.1963) and United States v. McCall, 148 U.S.App.D.C. 444, 460 F.2d 952 (1972).
. In Corrao v. State, 154 Ind.App. 525, 290 N.E.2d 484 (1972), passengers in an automobile were held not to be in possession of marijuana found in the trunk although the driver was held to be in possession of it as was another passenger who owned the automobile. To similar effect see Montoya v. United States, 402 F.2d 847 (5 Cir., 1968), Bettis v. United States, 408 F.2d 563 (1969), and People v. Mosley, 131 Ill.App.2d 722, 265 N.E. 889, 890[3] (1971); Anno. 57 A.L.R.3d 1319 (Illicit Drugs — Possession by Car Occupant).
. In State v. Miller, 536 S.W.2d 524 (Mo.App.1976) evidence was held insufficient to support a conviction for burglary and larceny where it was shown that the defendant was on the premises the day before the burglary occurred and he was arrested five days later 100-120 miles from the scene of the burglary riding as a passenger in a vehicle in which some of the stolen merchandise was found. The court pointed out that the defendant “made no incriminating statement connecting him with the crimes; no contradictory statements to the officers; . .
In State v. Enochs, 339 Mo. 953, 98 S.W.2d 685, 687 (1936) the court, referring to a statement made by the defendant to police officers, said: “This statement was false and therefore incriminating for if the facts were consistent with appellant’s innocence he need not have lied about them.” (emphasis in original).