dissenting.
As the majority concedes, aggravated murder, as defined in ORS 163.095(2)(d), and felony murder, as defined in ORS 163.115(l)(b), are distinct offenses. The one important distinction, for the purpose of the issue before us, is whether the defendant "personally” committed the homicide. Count I of the indictment attempts to charge aggravated murder without any allegation that the defendant "personally” committed the homicide described in the indictment.
Under this indictment, the plaintiff could have proven that the defendant’s agent shot the victim with a firearm or that defendant aided or abetted another in the shooting, State v. Fraser, 105 Or 589, 594, 209 P 467 (1922), and this is so even though the defendant may not even have been present at the scene of the homicide, State v. Carroll, 155 Or 85, 62 P2d 830 (1936).
I would concede that ordinarily the specific means employed in committing a crime need not be *531described with any great particularity, but when the very manner or means of commission is what defines the crime, I believe it is necessary to allege such manner or means. When it is a peculiar manner or means of commission of the proscribed act that governs which of two distinct offenses is sought to be charged, the specified manner or means should be required to be alleged in the accusatory instrument.
This indictment is simply insufficient to charge aggravated murder. To require the plaintiff to add the word "personally” when charging aggravated murder under ORS 163.095(2)(d) places no great burden upon the prosecutor and would enable the accused to know exactly what is the charge against him.
I would dispose of this case as did the Court of Appeals. State v. Cohen, 42 Or App 297, 300, 600 P2d 892 (1979).