(concurring specially)—Because this matter will have to be retried, and there are serious questions regarding the preservation of error and the appropriateness of review on the issue which I will discuss, I am casting these observations in the form of a special concurring opinion. I do so in the hope that those observations will focus attention on the problems arising from the less than precise language of RCW 74.08.331, which reads as follows:
Any person who by means of a wilfully false statement, or representation, or impersonation, or a wilful failure to reveal any material fact, condition or circumstance affecting eligibility of need for assistance, including medical care, surplus commodities and food stamps, as *205required by law, or a wilful failure to promptly notify the county office in writing as required by law or any change in status in respect to resources, or income, or need, or family composition, money contribution and other support, from whatever source derived, or any other change in circumstances affecting his eligibility or need for assistance, or other fraudulent device, obtains, or attempts to obtain, or aids or abets any person to obtain any public assistance to which he is not entitled or greater public assistance than that to which he is justly entitled shall be guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than fifteen years.
Any person who by means of a wilfully false statement or representation or by impersonation or other fraudulent device aids or abets in buying, selling, or in any other way disposing of the real property of a recipient of public assistance without the consent of the secretary shall be guilty of a gross misdemeanor and upon conviction thereof shall be punished by imprisonment for not more than one year in the county jail or a fine of not to exceed one thousand dollars or by both.
(Italics mine.)
Although this statute has survived an attack for unconstitutional vagueness and uncertainty, State v. Knowles, 79 Wn.2d 835, 490 P.2d 113 (1971), it is far from being a model for clarity and continues to pose problems of interpretation for the courts. See for example State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980); State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976); State v. Jones, 22 Wn. App. 506, 591 P.2d 816 (1979); State v. Walters, 8 Wn. App. 706, 508 P.2d 1390 (1973).
It seems to me, however, that the legislature intended by the first portion of the statute to create a specific crime which can be committed only by a certain class of persons, namely applicants for or recipients of welfare benefits. This is so because the duties to report income or resources therein mentioned arise from RCW 74.04.300, which reads in part as follows:
It shall be the duty of recipients of public assistance to notify the department within twenty days of the receipt *206or possession of all income or resources not previously declared to the department, and any failure to so report shall be prima facie evidence of fraud.
(Italics mine.) "Applicant" and "recipient" are respectively defined in RCW 74.04.005(8) and (9) as follows:
"Applicant"—Any person who has made a request, or on behalf of whom a request has been made, to any county office for assistance.
"Recipient"—Any person receiving assistance or currently approved to receive assistance at any future date and in addition those dependents whose needs are included in the recipient's grant.
Defendant Matthews was not a "recipient" of welfare nor had he personally applied for benefits. It was Mrs. Matthews alone who applied for and was a recipient of benefits, albeit based on the assertion that Mr. Matthews was no longer a resident of the household and was not contributing to its support. Not being a recipient, Mr. Matthews was not "required by law" to either reveal any fact to the department or to promptly notify of a change in his status. Thus, the State may not charge Mr. Matthews as a principal with committing welfare fraud in the alternative ways described in the elements instruction.1
*207Yet, under the elements instruction, it is possible the jury found defendant owed the duties required of a recipient and based its guilty verdict on his failure to reveal or report. We have no way of knowing, because the verdict was general in form. There was of course, no evidence that defendant personally made any false statement to obtain benefits for his wife and children, although he may have encouraged or aided and abetted her in that respect.
This is not to say that defendant could not properly have been charged with aiding and abetting Mrs. Matthews in committing welfare fraud. In fact, that is what should have been done. RCW 74.08.331 also creates a separate and distinct crime of aiding and abetting a welfare recipient to commit welfare fraud. However, by charging and convicting defendant either as a principal or as an aider and abettor under RCW 9A.08.020, the State has run afoul of the rule that such statutes are general in their terms and
manifestly intended to meet cases not otherwise specifically provided for by statute. They have no application to acts which are, by specific and distinct statutes, expressly designated and made subject to punishment as primary crimes in themselves.
State v. Wappenstein, 67 Wash. 502, 530, 121 P. 989 (1912). Accord, State v. Emmanuel, 42 Wn.2d 799, 259 P.2d 845 (1953); State v. Morrison, 175 Wash. 656, 27 P.2d 1065 (1933); State v. Furth, 82 Wash. 665, 674, 144 P. 907 (1914).
*208In Furth the court held the general aider and abettor statute (the forerunner of RCW 9A.08.020) had no application to the offense of receiving deposits in a bank knowing it to be insolvent. The court held an "outsider" could not be prosecuted as an aider and abettor because the act creating the crime (1) confined its commission to a particular class; and (2) contained its own special aider and abettor clause also limited to the same class.
Thus, I believe it was the intention of the legislature to limit and define the class which could be guilty of welfare fraud; further, the intent was to create the separate crime of aiding and abetting; therefore, the general aider and abettor statute, RCW 9A.08.020, does not apply to defendant's activities and cannot form the basis for the charge. The vice of this case is that under the elements instruction given, defendant may have been convicted as a principal.
A problem of review arises because defendant did not call this particular defect of the elements instruction to the trial court's attention. Nor did defendant raise the issue on appeal. However, defendant's general attack on the sufficiency of the evidence to convict probably requires us to consider the issue. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). It is also possible defendant was deprived of due process by defense counsel's failure to raise the point and is therefore entitled to review. See State v. Ermert, supra.
In any event, because defendant must undergo a new trial, any further appeals on the issue will be avoided if the State charges him under RCW 74.08.331 with aiding and abetting Mrs. Matthews to commit welfare fraud and makes no effort to charge him as a principal.2
instruction No. 6, the elements instruction, reads in toto as follows:
"If you find from the evidence, beyond a reasonable doubt all of the following alleged facts, to-wit:
"1) That in Pierce County, Washington;
"2) On or about the period from May 20, 1977 and August 31, 1978;
"3) That the defendant did obtain or aided and abetted any other person to obtain any public assistance to which he was not entitled, or greater public assistance than that to which he was justly enriched;
”4) By means of either
"(a) A wilfully false statement, or
n(b) A wilful failure to reveal any material fact, condition or circumstances affecting eligibility of need for assistance, which is required by law, or
" (c) A wilful failure to promptly notify the Department as required by law of any change in status in respect to resources or income or family composition, money contribution and other support from whatever source derived, or any other change in circumstances affecting eligibility or need for assistance;
"Then you shall find the defendant guilty of grand larceny as charged in the information in connection therewith.
*207"You are instructed that if the entire number of the jury agrees that any one of supplements (a), (b) or (c) of element 4 has been proven, that element has been proven.
"You are further instructed that if the entire number of the jury agrees that the defendant participated in the crime charged whether or not they agree as to whether his participation was as a primary actor or as an aider or abettor, then he shall be found guilty.
"On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty."
By instruction No. 4 the court informed the jury of a recipient's duty to report, RCW 74.04.300, and by instruction No. 5 informed the jury that if Mr. Matthews was separated or divorced from his wife, he was not required to notify *209the Department of Social and Health Services of any change in his circumstances or financial condition.
The difficulties in this case arose because all involved seemed to assume it would be a defense if Mr. Matthews could prove he was in fact living separate and apart from his family. This issue was obviously resolved against him. However, I submit that even if he was clandestinely residing in the home, his criminal liability could be only that of an aider and abettor under RCW 74.08.331 unless he actively applied for or became a recipient of welfare.