Pacheco was convicted of grand larceny of a rifle. On appeal he assigns one error —an instruction on aiding and abetting,— with which he was not charged. The State conceded that there was no evidence of the latter but says the instruction was not prejudicial. We simply say “why not?” since such an instruction has quite a different hue and complexion from behind prison walls than it might have elsewhere. This man is entitled to a new trial since it is impossible for this court to prestidigítate whether the jury convicted defendant of larceny or aiding and abetting, under the record in this case. We cannot enjoy the luxury or humiliation in this country to sustain the conviction of a man on trite aphorism unsupported by any kind of evidence.
The dissent says there is no such crime as aiding and abetting. Not so. To convict for aiding and abetting, under Title 76-1-44, U.C.A.1953, the State must prove first that some other person, — in this case appellant’s brother, Bob, — committed the offense. No effort was made by the State so to do, and so far as this record is concerned Bob or anyone else has never been charged with the offense. The statement in the dissent compounds and emphasizes the prejudiciality of the instruction on aiding and abetting.
The case is reversed and remanded for a new trial as requested.
CALLISTER, C. J., and TUCKETT, J., concur.