filed the following dissenting opinion.
As I read it, the majority opinion holds in effect that the proximity of the time when and the place where the burglary was committed together with the presence of the defendants in and flight from the vicinity of the burglarized premises was sufficient to support a proper and permissible inference that the defendants had actually participated in the burglary. I cannot agree because in my opinion the mere coincidence of these factors, without more, was not enough to justify a conviction.
*512It may be that the defendants (Charles H. Tasco and Bob Curry) were among the “about three” or four persons, who, within a few minutes after the burglary, had gathered together about five feet from the stolen safe which had been abandoned on the vacant lot on Bruce Street approximately a third of a block south of the burglarized premises. Nevertheless, it must be kept in mind that one of those who was positively seen by the police got away and that the layout of the vicinity was such that there was nothing to stop others who might have been present from fleeing unobserved along an unguarded escape route down Bruce Street to Presstman. Yet, be that as it may, the defendants were among those who were captured when they attempted to flee as the police converged on both ends of the alley between Bruce and Mount Streets. But other than these pieces of circumstantial evidence, there was absolutely no evidence that the defendants had participated in the crime. Indeed, other than the uncorroborated statements of the accomplice (Nathan Brewer, Jr.), who did not appeal— to the effect that, though Curry was not helping to push the safe, he had seen him standing about three or four feet from it; and that, though Tasco had not touched the safe, he had seen him standing in the alley in the rear of the food market— there was no evidence that the defendants had ever been near the stolen safe. On the contrary, one of the defendants (Curry) claimed that he had seen Brewer at a dice game in the alley and the other (Tasco) claimed that he was merely walking through the alley. Moreover, Officer Catania frankly admitted that he could not identify either of the defendants as one of the men he had seen standing near the safe as he entered Bruce Street and approached the west end of the alley. And, which is more important, there was no showing that the defendants had ever had possession of or control over any part of the stolen property—the safe, the pennies or the cigarettes—or the tools used to break into and out of the burglarized premises, a fact which the majority seemingly chose to ignore as having any bearing on the question of the sufficiency of the evidence to convict.
The majority concede that mere presence of a person at the scene of a crime is not sufficient to establish that that person *513was either a principal or an accomplice, and that flight alone is not controlling. We all agree that presence as well as flight are factors which may be considered in determining guilt. But, unlike the majority, it is my opinion that the factors of time and place, like the factors of presence and flight, merely constitute additional circumstances from which an inference may be drawn, but which, without more, even when all of the circumstances are considered together, are not conclusive of guilt or sufficient to convict.
Of course, when a case is tried by a court sitting without a jury, as this one was, the rule (Maryland Rule 741c) is that upon appeal this Court may review the sufficiency of the evidence, but the verdict may not be set aside on the evidence alone unless the verdict was clearly erroneous. But where, as here, the State relies solely on circumstantial evidence to support a conviction—whether in a court trial or a jury trial —the test is as was said in Shelton v. State, 198 Md. 405, 84 A. 2d 76 (1951), at p. 412: “Before a verdict of guilty is justified, the circumstances, taken together, must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” See also Vincent v. State, 220 Md. 232, 151 A. 2d 898 (1959); Glaros v. State, 223 Md. 272, 164 A. 2d 461 (1960). The question then, is whether the circumstances in this case are inconsistent with or exclude every reasonable hypothesis of innocence. I think the circumstances proved are not only consistent with innocence, but definitely do not exclude every reasonable conjecture of guiltlessness. So, it is my belief that proof of facts and circumstances which are as consistent with innocence as with guilt—in the absence of some positive inculpatory evidence to impute guilt, such as the existence of fingerprints or the possession of the fruits of the crime or the tools used to perpetrate it—are not enough to warrant a finding of guilt. At most, the circumstantial evidence in this case, though it may raise a supposition of guilt, does no more than show that the defendants had an opportunity to participate in the burglary.
In People v. Draper, 160 P. 2d 80 (Cal. 1945), where the accused was found at the burglarized premises at the time or shortly after the burglary was committed, was unable to ac*514count for his time during the period the burglary was committed, ran and sought to elude the police and lied about his whereabouts immediately before the commission of the crime, it was held (at p. 83) that while the evidence “points the finger of suspicion” at the accused and “shows that he had an opportunity to participate in the commission of the crime,” the evidence was not “sufficient to sustain the burden resting on the People of proving him guilty beyond a reasonable doubt for it is the rule here that evidence that merely raises suspicion, no matter how strong, of the guilt of a person charged with a crime is not sufficient to sustain a verdict and judgment against him.”
In Commonwealth v. Williams, 118 A. 2d 228 (Pa. Super. 1955), where the automobile of the accused had been seen leaving the vicinity of the burglarized premises at two o'clock a.m., and, upon pursuit by the police, the accused abandoned the car and fled, the Superior Court of Pennsylvania, in reversing the lower court because the evidence was insufficient to establish beyond a reasonable doubt that the accused had any connection with the burglary, stated, (as this Court held in effect in Felkner v. State, 218 Md. 300, 146 A. 2d 424 [1958]), that “if it were shown that appellant had possession of the safe recently stolen in the perpetration of the burglary, this could be considered by the finder of fact as evidence of guilt on the charges of both larceny and burglary.”
And in Poythress v. State, 20 S. E. 2d 212 (Ga. App. 1942), when the accused, a twice-convicted, moonshiner, walked into a police “stakeout” around a still and ran when he saw the revenue officers, but denied any knowledge of the existence or operation of the still, claiming he was in the woods looking for lost hogs, it was held that the evidence was insufficient to support a conclusion that the accused had participated in the illicit operation of the still. See also People v. Baldiseno, 42 N. Y. S. 2d 812 (App. Div. 1943) ; Demonia v. State, 17 S. E. 2d 204 (Ga. App. 1941); Hilson v. State, 276 S. W. 272 (Tex. Cr. 1925).
The majority cite Bouchillon v. State, 267 S. W. 2d 554 (Tex. Cr. 1954), as “a case very similar to the instant one.” The facts in Bouchillon, though similar, were by no means *515the same as those in the instant case and, for that reason, the case is clearly distinguishable. There (in Bouchillon), shortly after the burglary and removal of the safe from the burglarized premises, the accused, who was recognized by the police, and his companions were seen in a secluded spot near the safe, which had been recently blown open, and some of the money removed therefrom was recovered. All of the bystanders fled when the police approached, and, when apprehended, the accused failed to make any explanation of the predicament in which he was found. Thus, in Bouchillon, the arresting officer specifically recognized the accused as one of the bystanders, while in the instant case Officer Catania was unable to testify that either of the defendants was one of those he had seen standing near the safe. In Bouchillon, the area in which the safe was found was a lonely country road, while in this case the safe was left under a street light on an active alley in a densely populated area of a large city. In Bouchillon, some of the money taken from the safe was recovered, while in the case at bar the pennies taken from the burglarized premises were never found. And, in Bouchillon, the accused did not offer or attempt to explain his presence at the place where the safe was found, while in the present case both defendants gave reasons, albeit highly suspicious ones, for their presence near the safe.
Finally, even though the reasons given by Tasco and Curry in explanation of their presence in the alley when they were confronted with the co-defendant (Brewer), were questionable, and even though the trial court may have had sufficient reason to disbelieve their testimony, it is certain, nevertheless, that the State was not thereby relieved of proving that the defendants were guilty. No matter how untruthful the defendants may have been, they were not required to prove their innocence. On the contrary, the burden of proving their guilt beyond a reasonable doubt and to a moral certainty was on the State, and in my opinion it failed to do so.
For the reasons herein stated, I would set aside the judgments and remand the case for a new trial.