I concur in that part of the foregoing opinion affirming the conviction of Luther Baker. I am unable to agree with that portion of the opinion approving the instruction which reads as follows:
"It is immaterial in this case whether or not the defendants Ellis Baker and Lewis `Ted' Baker were present at the time of the alleged shooting. These two defendants are charged with having entered into an agreement or conspiracy to kill Lester M. Wood or any other officer as set out in the information, and if you find beyond a reasonable doubt that they did enter into such an agreement or conspiracy with Luther Baker and that Luther Baker in pursuance of such agreement or conspiracy did kill Lester M. Wood as charged in the information, then it would be your duty to find the defendants Ellis Baker and Lewis `Ted' Baker guilty of murder in the first degree, even though they were not actually present at the time of the alleged killing."
As I read the information in this case, there is contained therein no charge of agreement or conspiracy; no charge of aiding or abetting. I think the defendants Ellis and "Ted" Baker were warranted in coming into court and presenting an alibi as a complete defense to the charge contained in the information. It is true that under our statute one who counsels, assists, aids and abets in the commission of a crime may be charged as a principal, but in all of our previous holdings, in so far as I have made an examination of the cases, where the state expected to prove one guilty as a principal because of aiding and abetting, the charge of aiding and abetting has been contained *Page 105 in the information. State v. Golden, 11 Wn. 422, 39 P. 646;State v. Mann, 39 Wn. 144, 81 P. 561; State v. Klein,94 Wn. 212, 162 P. 52; State v. Vane, 105 Wn. 421,178 P. 456.
Probably the most perfect defense to a murder charge such as is contained in this information is an alibi, and as I read the record this was the defense relied upon by Ellis Baker and "Ted" Baker. I think the evidence is conclusive in this case that the three defendants were engaged in illicit liquor operations, and that if the state had charged Ellis and Lewis "Ted" Baker under the aiding and abetting statute, there is probably sufficient evidence to go to the jury as to both of them. Under the information as set out in the majority opinion, I think the giving of the instruction above quoted constitutes reversible error, and that a new trial should be granted Ellis Baker and Lewis "Ted" Baker.