The opinion of the court was delivered by
Owsley, J.:
This is an appeal from conviction of aggravated robbery (K. S. A. 1972 Supp. 21-3427) based upon the aiding and abetting statute (K. S. A. 1972 Supp. 21-3205).
On March 29, 1971, at about 11:00 a. m., Clifford Holloway, companion of defendant Charles White, robbed the Thriftway Market at 611 East 35th Street N. in Wichita. Witnesses to the robbery testified Holloway entered the store, looked around, walked to the check stand, pulled a .25 caliber automatic pistol from his jacket pocket, and said, “I want the money.” After being handed $214.00 he went out the door and walked unhurriedly east one-half block, got into a brown Chevrolet driven by another, and headed north on Santa Fe Street. The car drove away slowly. Witnesses also [863]*863testified they had never seen defendant White before the preliminary hearing, but Holloway had been in the store before.
A cruising patrol car spotted defendant’s automobile, a 1959 white over brown Chevrolet, from the description given by witnesses to the robbery. Defendant White stopped immediately upon seeing police car’s red light. He was driving without a license, but showed officers his social security card for identification. He got out as told and placed his hands on top of the car. He did not resist arrest or questioning in any way. Holloway, seated on the passenger side, came up with a gun and shot at the three officers several times before being subdued. He threw the sunglasses he had worn during the robbery on the floor of the car. Holloway had $223.21 in his possession. Officers found less than five dollars in defendant’s possession.
The defendant’s defense to the charge of aiding and abetting an armed robbery is no knowledge of Holloway’s intent to commit a robbery, nor knowledge a robbery had been committed.
A summary of the defendant’s testimony follows. He first met Holloway at the home of a mutual friend where Holloway arranged for him to rent his grandmother’s house. They had been together perhaps five or six other occasions for one or two hours at a time. On March 29, 1971, Holloway came to his house and asked for a ride downtown. He resisted, stating he had no gas for his car, but Holloway insisted and agreed to buy some gas. They headed for town and Holloway bought gas for the car. He then drove Holloway to a department store and kept driving around the block until Holloway came out of the store carrying a package. They returned to defendant’s home for cigarettes and his wife asked him to get some soup from the grocery store. Holloway then wanted to go get some money from a girl and directed defendant to drive to Santa Fe Sheet near 35th Street N. He was told to let Holloway out, go turn around, and pick him up again. Santa Fe Street at that point is unpaved and narrow and he had to drive three blocks before finding a place to turn around. When he returned to pick Holloway up, he observed him walking across the street at a normal pace about one-half block away. Holloway got into the car saying, "the bitch wasn’t home.” Defendant drove on, intending to go to a grocery store near his home to get the soup his wife wanted.
When police stopped defendant’s car and instructed him to get out he assumed he was being questioned because his driver’s license was expired and he was driving without a license. When the shoot[864]*864ing by Holloway and police began, defendant did not move from his upright position with hands on top of tire car for fear he would be shot by police. After Holloway was subdued, defendant was told to lie on the ground, which he did. He was handcuffed and taken to police headquarters where he told officers about his association with Holloway. He thought he was being questioned at that time about the shooting. Later, when asked by officers about tire robbery, he stated this was the first he knew of Holloway’s activities and that he had never discussed a robbery with Holloway on that day or any other day, and that most of their conversation was about women. He told the officers he had not seen anything to make him believe Holloway intended to commit a robbery and he did not know Holloway owned or carried a gun or had committed a robbery until he was told by police.
The defendant receives a pension or disability check as a result of having four toes off his right foot and a dead nerve in his back.
The defendant objected to the trial court’s instruction on aiding and abetting because it did not include the word “intentionally.” The instruction corrected this shortcoming in its second paragraph by use of the phrase “knowing his purpose and intent to commit the robbery.” Read as a whole the instruction was not erroneous and was typical of instructions on aiding and abetting previously approved by this court. (State v. Winters., 120 Kan. 166, 241 Pac. 1083; State v. Goodman, 207 Kan. 155, 483 P. 2d 1040.) Nevertheless, it would be better practice to phrase the instruction in the words of K. S. A. 1972 Supp. 21-3205:
"(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
The defendant further claims it was error to admit into evidence the sunglasses worn by Holloway, the money found on Holloway at time of arrest, and the weapon used by Holloway. He was charged with aiding Holloway in an armed robbery; therefore, the state must prove Holloway’s perpetration of the crime as well as defendant’s conspiracy with him. The weapon and loot are necessary to prove elements of armed robbery against Holloway and the sunglasses were part of the identification of Holloway by witnesses. Admission of these exhibits into evidence was not error..
The defendant claims it was error to admit into evidence numerous photographs of his automobile which show its bullet-riddled condition after the shoot-out between Holloway and police. [865]*865Defendant alleges these were introduced only to shock the jury and prejudice them against him. There is some merit to this objection. The twenty photographs of defendant’s car from all conceivable angles, inside and out, have a cumulative effect. Photographs of the whole automobile are a necessity in identifying defendant’s automobile as the one seen leaving the scene of the crime. Some of the photographs were close-ups of bullet holes in the car. It is difficult to justify the use of photographs of bullet holes in the upholstery, the door lock, front windshield, etc., for identification purposes. The exercise of proper judicial discretion could have limited the number and nature of these photographs, but we cannot say prejudicial error occurred in their admission.
The defendant claims it was error to admit any evidence or testimony about the acts of Holloway after he was in police custody. Defendant was not charged with resisting arrest or assaulting an officer; therefore, he claims such testimony was irrelevant and its only purpose was to inflame and prejudice the jury against him. Evidence of the circumstances surrounding the arrest of defendant and Holloway is a necessary foundation for introducing other evidence proving elements of the crime against Holloway.
The defendant states he should be discharged since the state’s evidence was insufficient to connect him with the crime or to show he was a participant in the crime. Our role on appeal has been consistently and frequently repeated.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from conviction of aggravated robbery (K. S. A. 1972 Supp. 21-3427) based upon the aiding and abetting statute (K. S. A. 1972 Supp. 21-3205).
On March 29, 1971, at about 11:00 a. m., Clifford Holloway, companion of defendant Charles White, robbed the Thriftway Market at 611 East 35th Street N. in Wichita. Witnesses to the robbery testified Holloway entered the store, looked around, walked to the check stand, pulled a .25 caliber automatic pistol from his jacket pocket, and said, “I want the money.” After being handed $214.00 he went out the door and walked unhurriedly east one-half block, got into a brown Chevrolet driven by another, and headed north on Santa Fe Street. The car drove away slowly. Witnesses also [863]*863testified they had never seen defendant White before the preliminary hearing, but Holloway had been in the store before.
A cruising patrol car spotted defendant’s automobile, a 1959 white over brown Chevrolet, from the description given by witnesses to the robbery. Defendant White stopped immediately upon seeing police car’s red light. He was driving without a license, but showed officers his social security card for identification. He got out as told and placed his hands on top of the car. He did not resist arrest or questioning in any way. Holloway, seated on the passenger side, came up with a gun and shot at the three officers several times before being subdued. He threw the sunglasses he had worn during the robbery on the floor of the car. Holloway had $223.21 in his possession. Officers found less than five dollars in defendant’s possession.
The defendant’s defense to the charge of aiding and abetting an armed robbery is no knowledge of Holloway’s intent to commit a robbery, nor knowledge a robbery had been committed.
A summary of the defendant’s testimony follows. He first met Holloway at the home of a mutual friend where Holloway arranged for him to rent his grandmother’s house. They had been together perhaps five or six other occasions for one or two hours at a time. On March 29, 1971, Holloway came to his house and asked for a ride downtown. He resisted, stating he had no gas for his car, but Holloway insisted and agreed to buy some gas. They headed for town and Holloway bought gas for the car. He then drove Holloway to a department store and kept driving around the block until Holloway came out of the store carrying a package. They returned to defendant’s home for cigarettes and his wife asked him to get some soup from the grocery store. Holloway then wanted to go get some money from a girl and directed defendant to drive to Santa Fe Sheet near 35th Street N. He was told to let Holloway out, go turn around, and pick him up again. Santa Fe Street at that point is unpaved and narrow and he had to drive three blocks before finding a place to turn around. When he returned to pick Holloway up, he observed him walking across the street at a normal pace about one-half block away. Holloway got into the car saying, "the bitch wasn’t home.” Defendant drove on, intending to go to a grocery store near his home to get the soup his wife wanted.
When police stopped defendant’s car and instructed him to get out he assumed he was being questioned because his driver’s license was expired and he was driving without a license. When the shoot[864]*864ing by Holloway and police began, defendant did not move from his upright position with hands on top of tire car for fear he would be shot by police. After Holloway was subdued, defendant was told to lie on the ground, which he did. He was handcuffed and taken to police headquarters where he told officers about his association with Holloway. He thought he was being questioned at that time about the shooting. Later, when asked by officers about tire robbery, he stated this was the first he knew of Holloway’s activities and that he had never discussed a robbery with Holloway on that day or any other day, and that most of their conversation was about women. He told the officers he had not seen anything to make him believe Holloway intended to commit a robbery and he did not know Holloway owned or carried a gun or had committed a robbery until he was told by police.
The defendant receives a pension or disability check as a result of having four toes off his right foot and a dead nerve in his back.
The defendant objected to the trial court’s instruction on aiding and abetting because it did not include the word “intentionally.” The instruction corrected this shortcoming in its second paragraph by use of the phrase “knowing his purpose and intent to commit the robbery.” Read as a whole the instruction was not erroneous and was typical of instructions on aiding and abetting previously approved by this court. (State v. Winters., 120 Kan. 166, 241 Pac. 1083; State v. Goodman, 207 Kan. 155, 483 P. 2d 1040.) Nevertheless, it would be better practice to phrase the instruction in the words of K. S. A. 1972 Supp. 21-3205:
"(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
The defendant further claims it was error to admit into evidence the sunglasses worn by Holloway, the money found on Holloway at time of arrest, and the weapon used by Holloway. He was charged with aiding Holloway in an armed robbery; therefore, the state must prove Holloway’s perpetration of the crime as well as defendant’s conspiracy with him. The weapon and loot are necessary to prove elements of armed robbery against Holloway and the sunglasses were part of the identification of Holloway by witnesses. Admission of these exhibits into evidence was not error..
The defendant claims it was error to admit into evidence numerous photographs of his automobile which show its bullet-riddled condition after the shoot-out between Holloway and police. [865]*865Defendant alleges these were introduced only to shock the jury and prejudice them against him. There is some merit to this objection. The twenty photographs of defendant’s car from all conceivable angles, inside and out, have a cumulative effect. Photographs of the whole automobile are a necessity in identifying defendant’s automobile as the one seen leaving the scene of the crime. Some of the photographs were close-ups of bullet holes in the car. It is difficult to justify the use of photographs of bullet holes in the upholstery, the door lock, front windshield, etc., for identification purposes. The exercise of proper judicial discretion could have limited the number and nature of these photographs, but we cannot say prejudicial error occurred in their admission.
The defendant claims it was error to admit any evidence or testimony about the acts of Holloway after he was in police custody. Defendant was not charged with resisting arrest or assaulting an officer; therefore, he claims such testimony was irrelevant and its only purpose was to inflame and prejudice the jury against him. Evidence of the circumstances surrounding the arrest of defendant and Holloway is a necessary foundation for introducing other evidence proving elements of the crime against Holloway.
The defendant states he should be discharged since the state’s evidence was insufficient to connect him with the crime or to show he was a participant in the crime. Our role on appeal has been consistently and frequently repeated. A verdict of guilty will not be set aside because of insufficiency of evidence unless it is clearly made to appear that upon no hypothesis whatsoever is there substantial evidence to support the conviction in the trial court. (State v. Paxton, 201 Kan. 353, 440 P. 2d 650.) It is the jury’s function to judge the reasonableness of the hypothesis. We cannot say that under all the facts and circumstances in the record, and the inferences that can reasonably be drawn therefrom, there is no substantial evidence to support the jury’s verdict. We recognize the evidence against the defendant was entirely circumstantial. The trial court failed to instruct the jury on circumstantial evidence, even though the instruction was requested by the defendant. A proper instruction on circumstantial evidence cautions that the defendant should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence. (PIK 52.16.) We believe it logical and reasonable that if such an instruction had been given and conscientiously applied, the result [866]*866could have been an acquittal. We believe defendant was entitled to a circumstantial evidence instruction and failure to give it was error. We find support in State v. Andrews, 62 Kan. 207, 61 Pac. 808; State v. Gereke, 74 Kan. 196, 86 Pac. 160; State v. Truskett, 85 Kan. 804, 118 Pac. 1047; State v. Miller, 90 Kan. 230, 133 Pac. 878. In Truskett we said:
“An instruction relating to circumstantial evidence was requested and refused. It has been held that an instruction upon that subject should be given if requested where the evidence is such that the conviction might be upon circumstantial evidence alone. . . (p. 820.)
In State v. Skinner, 210 Kan. 354, 503 P. 2d 168, we held that an instruction on circumstantial evidence is not required when there is direct evidence of the guilt of the accused. Since there was no direct evidence of the guilt of the defendant in this action, State v. Skinner, supra, is distinguishable.
Other assignments of error need not be considered since we are reversing the trial court and remanding the case for a new trial.