Thе defendant appeals from a conviction for breaking and entering a motor vehicle with intent to commit larceny. The only question presented by the appeal is the sufficiency of the evidence to sustain the conviction.
The record shows that an automobile owned by Flank Wolczak was broken into on August 16, 1970, and a radio removed from the automobile. At the time of the offense the automobile was in a parking lot near the University of Nebraska Medical Center in Omaha, Nebraska, where Wolczak was employеd as a security guard. At about 3:40 a.m., Wolczak discovered that the radio had been removed from his automobile and notified the police.
At about 4 a.m. of the same day, Officers Garaczkowski and Sommer were on patrol in the vicinity of Thirtieth and Cuming Streets in Omaha, Nebrаska. They observed a black Plymouth automobile proceeding without any lights. As the automоbile passed the police cruiser at Thirty-first and Nicholas Streets, the officers notiсed that the passengers in the rear seat appeared to be “shuffling around” as if thеy were putting something down in the back seat. They stopped the automobile just north of thе intersection and observed there were some articles on the rear floor оf the automobile partially covered by a banket. When the blanket was removed they found the radio taken from the Wolczak automobile, a stereo tape plаyer, 9 stereo tapes, and a pair of surgical nail clippers.
The automobile belonged to the defendant. It was being operated by Leon McBride. Felton Phelps was sitting on the right side of the front seat. Jesse James D'avis was sitting on the left side of the rear seаt, and *484 the defendant was sitting on the right side of the rear seat. The radio and other articlеs were on the floor between Davis and the defendant. The defendant, who was arrestеd and taken to the police station, did not appear to be intoxicated.
Davis was called by the defendant and testified that he and Phelps had broken into the Wolczak automobile and taken the radio; that the defendant had nothing to do with the breaking and entering of the Wolczak automobile; that the defendant was asleep in the rear sеat of the black Plymouth automobile at the time the Wolczak automobile was brokеn into; and that the defendant did not awaken until the automobile had been stopped by thе police. Davis also testified that he had been with the defendant, off and on, from abоut noon on the preceding day, and that the four were together from midnight until they were piсked up by the police.
The defendant testified that he owned the Plymouth automobile; that he and Phelps were together during the evening of August 15, 1970; that Davis and McBride were together and that the four of them got together at about 1 a.m.; that he drank a quart of beer at about 9 or 10 o’clock; that they picked up> McBride’s girl friend at about 1 a.m. to take her to thе hospital; that he remembers nothing after that until he was awakened by the police shining a light in his face; and that he was sleeping because he had been 'drinking.
The evidence shows that the defendant and his companions had been together for several hours before the crime was committed. It is undisputed that the defendant was present at the scene of the crime. The defendant’s automobile was being used to transport the stolen property and the four men were apprehended within a very short time after the break-in had occurred. The defendant’s claim that he was sleeping and intoxicated was cоntradicted by the testimony of the police officers.
• A common purpose amоng two or more persons to commit a crime need, not be shown by positive evidenсe
*485
but may be inferred from the circumstances surrounding the act and from the defendant’s cоnduct subsequent thereto. Miller v. State,
The judgment of the district court is affirmed.
Affirmed.