(concurring specially).
*551I agree with the result reached by the majority opinion but considering the nature of the charge and the record in this case, I do not believe the emphasis placed by the appellant on the agency instruction, Instruction 3A, and this court is warranted.
Appellant was charged in the complaint as a principal in the distribution or dispensing of amphetamines to another. His presence at the time of the actual transfer of drugs from the hiding place selected by him to the go-between, Harris, through Conner to Carlson, whether he was an agent of Conner, or the appellant, or an independent contractor matters not, I believe, by reason of the plain import of SDCL 22-3-3 which reads as follows:
“22-3-3. All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals.” (Emphasis Supplied)
While an instruction might have been given which set forth the essence of the above quoted statute, I am not aware of any requirement for such an instruction absent a request therefor.
The agency instruction, in my opinion, was unnecessary but not misleading. If prejudicial at all, the instruction was prejudicial to the state in that it placed a burden of proof on the state which the state would not have, under SDCL 22-3-3, but nevertheless it met that burden.