487 P.2d 915

#### STATE of New Mexico, Plaintiff-Appellee, v. Carl SHUEMAK, Defendant-Appellant.

No. 673.

Court of Appeals of New Mexico.

July 23, 1971.

Stephen G. Durkovich, Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Shuemak was convicted of burglary and larceny in the event described in State v. Phillips (Ct.App.) 83 N.M. 5, 487 P.2d 915, decided July 23, 1971. In this case, the neighbor testified that only three men placed the television set back on top of the car after it fell off. The record does not contain any evidence to identify Shuemak as a participant in the burglary and larceny.

The judgment and sentence is reversed. Shuemak is discharged.

It is so ordered.

WOOD, C. J., and HENDLEY, J., concur.