(concurring) — The complexity of the prob-
lem concerning whether giving an aiding and abetting instruction was prejudicial error under the circumstances compels this further comment.
I believe that it is also pertinent, to some extent, that when the manager returned from her errand, she noticed the automobile occupied by Ms. Estill and stopped to talk to Ms. Estill who said, “My husband is looking to rent a unit . . .” When the manager then asked where the “husband” was, Ms. Estill then said, “Well, he went looking for you.” A very few minutes later the manager came upon the defendant near the front door of her apartment at the motel. When later the same day the defendant and Ms. Estill rented a room at another motel in Seattle, the name used was the name of the manager of the burglarized motel. At this second motel, the night clerk discovered that a lamp was missing from the unit occupied by them; and the defendant was challenged concerning the missing lamp. The lamp was replaced by the defendant, and the night clerk then locked the unit. Later when the defendant attempted to reenter, saying he had left money in the room, he was refused reentry. The next morning, the maid in the second motel found the property taken from the manager of the first motel in the room that had been occupied by the defendant and Ms. Estill.
The evidence, insofar as Ms. Estill is concerned, could be interpreted as proving that: (1) she stood by or (2) she participated or (3) she was the sole breaker and enterer or (4) she broke and entered the building with Taplin. However, when we examine the evidence insofar as she is concerned, standing alone, it is apparent only that she was present at the scene of the crime and in the second motel with the defendant. During that time, the defendant was in possession of the stolen property shortly after the burglary *549and has been identified as being present at the scene of the crime. A prima facie case of burglary in the second degree could be made out insofar as Ms. Estill is concerned, except only for the weakness of the evidence pertaining to her possession of the goods. The contention could be raised that only the defendant was in possession of the goods in the second motel.
The evidence insofar as the defendant is concerned is that he (1) stood by or (2) participated or (3) perpetrated the breaking and entering alone or (4) perpetrated the breaking and entering with Ms. EstilL Under the evidence, there is no plausible explanation that the defendant merely stood by. The requirements for proving a prima facie case of burglary in the second degree have been presented as to him. See State v. Palmer, 1 Wn. App. 152, 157, 459 P.2d 812 (1969). He could be found, under the circumstantial evidence required to establish a prima facie case to have: (a) been ready to assist a perpetrator by his presence, State v. Palmer, supra; or (b) participated as an aider and abettor, (as illustrative only: by driving the getaway car, acting as a lookout, see State v. Naples, 51 Wn.2d 525, 319 P.2d 1096 (1958), acting as a decoy or cover, or by helping load or unload the loot) or; (c) perpetrated the breaking and entering alone; or (d) perpetrated the breaking and entering with another.
The evidence of the prosecution was disputed by an alibi witness for the defendant who indicated that the defendant was elsewhere at the time of the commission of the crime. This evidence did not, from the standpoint of the jury verdict, refute the evidence that the defendant was found in possession of the stolen property and that the defendant registered at the second motel falsely using the name of the victim of the burglary.
The elements that must be shown by substantial evidence to prove a prima facie case of burglary are: (a) the defendant broke into and entered a building and (b) the act was done with an intent to commit a crime therein. State v. Sewell, 49 Wn.2d 244, 299 P.2d 570 (1956); State v. *550Galen, 5 Wn. App. 353, 358, 487 P.2d 273 (1971). To convict a person of burglary, evidence must be presented that the crime was committed and by the defendant. State v. Allen, 67 Wn.2d 238, 406 P.2d 950 (1965).
The possession of recently stolen property has been held sufficient to establish that the person possessing such property was wrongfully in the burglarized building. State v. Davis, 60 Wn.2d 233, 373 P.2d 128 (1962). While mere possession of stolen goods unaccompanied by other evidence of guilt is not prima facie evidence of burglary, the rule is otherwise where there is evidence on collateral matters such as the character of the explanation of the possession (as here, the use of the stolen property with the fictitious use of the name of the true owner) or the presence of the accused near the scene of the crime. State v. Garske, 74 Wn.2d 901, 447 P.2d 167 (1968). In State v. Razey, 54 Wn.2d 422, 341 P.2d 149 (1959), where possession of stolen goods was coupled with evidence placing the defendant in the vicinity of the burglared premises and the possession of the stolen property was in the defendant a short time later, a prima facie case of burglary was established. In any event, in this case, it can be said that this particular burglary had been committed by someone, and a remaining question for the jury was whether or not the defendant committed the crime as the perpetrator or as an aider and abettor.
The instruction given on aiding and abetting stated as follows:
You are instructed that under the statutes of the State of Washington every person who stands by aiding, assisting or abetting, or who, not being present, directly or indirectly, has aided, assisted, abetted, advised, encouraged or counseled the perpetration of a crime is guilty of the commission of the crime and shall be proceeded against and punished as a principal.
The statute from which the instruction was drawn and with which we are concerned, with irrelevant portions omitted, reads as follows:
*551Every person concerned in the commission of a felony, . . . whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, . . . another to commit a felony, ... is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, . . . could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, . . . him.
RCW 9.01.030. The key words of the statute are that “[e]very person concerned in the commission of a felony . . . whether he directly commits the act constituting the offense [evidence of that exists here], or aids or abets in its commission, ... is a principal.” (Italics mine.) The statute encompasses within the forbidden criminal area participation in a criminal act whether as the direct perpetrator thereof or as one who has aided or abetted. Both the perpetrator and the aider are principals and placed in the same blameworthy criminal status. One who aids and abets the commission of a crime is equally guilty with the perpetrator. 1 O. Warren, Homicide § 62 (1938). The statute makes aiding and abetting a crime, a substantive offense independent of the proof of the participation by another. Goins v. State, 46 Ohio St. 457, 21 N.E. 476 (1889). The enlarged statutory circle encompasses the aider and abettor as a principal and does not exclude a person from criminal liability if he is proven to be concerned in the commission of a crime, even though the proof may not establish the role played by another also concerned. Participation in criminal intent may be inferred from presence near the scene of the crime and conduct before and after the offense is committed. State v. Myers, 158 N.W.2d 717 (Iowa 1968).
First of all, I do not believe that giving the instruction was erroneous. The circumstantial evidence was sufficient to support a jury conclusion that both the defendant and Ms. Estill participated in the crime with Ms. Estill as a lookout, decoy or as driver of the automobile. Each could *552have been found to have aided and abetted the other. There is no requirement that the aider and abettor be the dominant rather than the subservient participant. In this light, giving the instruction was not erroneous since it was supported by the evidence.
Secondly, the old chestnut that one cannot aid and abet himself ignores the purpose of the statute. I conceive this purpose to be to eliminate the necessity of proving the existence or identity of a principal-perpetrator of the crime charged (the existence of “another”) if the elements of the crime are proven, and it is also proven that the defendant was “concerned” in its commission. The statutory purpose is to clarify that criminal responsibility exists from culpable involvement as defined under the statute.
State v. Nikolich, 137 Wash. 62, 241 P. 664 (1925), stating that there must be proof that another committed the crime has been distinguished or ignored. In State v. Rossignol, 22 Wn.2d 19, 153 P.2d 882 (1944), the Nikolich case is distinguished on the basis that evidence did exist in Rossignol to support that “another” was involved in the crime. See also State v. Barry, 43 Wn.2d 807, 264 P.2d 233 (1953). In State v. Frazier, 76 Wn.2d 373, 456 P.2d 352 (1969), the defendant was charged by an information that accused him of robbery and which did not include an allegation that he aided and abetted the crime. Nonetheless, the jury was instructed on aiding and abetting in the terms of the statute. The defendant appealed his conviction claiming that since he was charged alone it was error to give the instruction because it (1) constituted an unconstitutional variance from the information and (2) was not warranted by the evidence. The court said that the statute eliminated the technical distinctions between accessory before and after the fact and held that an instruction on aiding and abetting-should not be given “if the evidence does not tend to establish that defendant was involved in the crime charged.” The holding points out that the statute permits a sole defendant to be charged as a principal and the court to instruct that one is a principal if he has aided and abetted the *553commission of the crime. Finally, the court held that the evidence did support giving the instruction because the evidence established that the crime took place, that the defendant was present, that the defendant made a statement concerning the crime, and that the defendant acted in relation to the crime. It is on these just related factors that the decision held there was sufficient evidence to support the conclusion that the defendant committed the crime. The decision does not say that the instruction must be based upon evidence that another was involved in the commission of the crime. Rather, in my belief, the decision is based upon the realization that the statute makes aiding and abetting any crime a substantive offense; and if there is proof that the defendant at least aided and abetted in the commission of the crime, it is not necessary that there be proof that someone else was involved.
The statute does not eliminate the necessity of proving the elements of the crime but only that the defendant was the actual perpetrator. Interpreting a similar statute (18 U.S.C. § 2), Von Patzoll v. United States, 163 F.2d 216, 218 (10th Cir. 1947), said:
This statute does away with the subtle distinctions recognized, with respect to felonies at common law, between principals and accessories before and at the fact and makes them all principals, whether the offense is a felony or a misdemeanor.
Conviction of the principal is not a prerequisite to the conviction of the aider and abettor.
And the acquittal of the principal presents no impediment to the trial and conviction of a person charged with aiding and abetting the commission of the crime. This because one who aids or abets the commission of a crime is guilty as a principal of a substantive, independent offense.
The proof must establish that the offense was committed by some one and that the person charged as an aider and abettor, aided and abetted in its commission. However, it is not necessary to identify the actual perpetrator of the crime. He may be unknown.
(Footnotes omitted.) See also United States v. Shuford, 454 *554F.2d 772 (4th Cir. 1971); United States v. Merriwether, 329 F. Supp. 1156 (S.D. Ala. 1971); 53 Am. Jur., Trial § 647.
Thirdly, I do not believe that the instruction was prejudicial. If the jury believed that the defendant did not commit the crime by breaking and entering the room of the manager but that someone else did, they were not misled into convicting the defendant on an unsupportable theory. The evidence supports the conviction of the defendant as a principal or as an aider and abettor whether based upon the theory that the defendant perpetrated the breaking and entering or aided an unknown person who perpetrated the act.
State v. Cooper, 26 Wn.2d 405, 412, 174 P.2d 545 (1946), stated:
Every person implicated in the commission of a felony as an accessory is a principal and is to be proceeded against as such. The prosecuting attorney, in drawing up an information, is not bound to elect between charging a defendant as a principal or as an accessory before the fact. Under the terms of the statute, he may ask for a verdict of guilty if the evidence is sufficient to satisfy the jury upon either theory.
For discussion of the Cooper case see State v. Ayres, 70 Idaho 18, 211 P.2d 142 (1949). See also State v. Redden, 71 Wn.2d 147, 150, 426 P.2d 854 (1967).
The evidence here was such that the defendant could not be found to be less than concerned and involved in the crime. There was no possibility from the evidence, once the jury rejected the alibi defense, that the jury could find the defendant was not “concerned.” The aiding and abetting instruction, if for argument’s sake is considered erroneous, could have been prejudicial if the evidence was that a crime had been committed without substantial evidence to make out a prima facie case against the defendant as to the specific crime charged. Here that evidence exists.
When an aiding and abetting instruction is given under the circumstances present in this case, the jury could find the instruction pertinent only if they decided that the de*555fendant did not do the breaking and entering. The other evidentiary essentials are established, to wit, (a) presence at the scene and (b) possession of stolen property. If the jury can find that the defendant was present at the scene and had possession of the property stolen, then the defendant would not be prejudiced by the giving of the instruction because it is immaterial under RCW 9.01.030 if it cannot be proven that another participated but can only be proven that there was a breaking and entering.2 The crime was committed by someone, and the defendant was concerned.
As said in People v. Starkey, 234 Cal. App. 2d 822, 44 Cal. Rptr. 738 (1965) at page 829:3
Defendant further contends that the trial court erred in giving two instructions on aiders and abettors as principals when there was no evidence showing participation by any person other than defendant in the alleged crimes. While the law is clear that it is error to give an instruction which, although correctly stating the law, has no application to the facts of the case, “However, the giving of such an instruction does not justify a reversal of the judgment unless it is affirmatively shown that the error would prejudice the rights of the defendant.” . . . No prejudice is shown in the instant case.
(Citation omitted.)
In conclusion, it is my opinion that:
*556(a) The circumstantial evidence is sufficient for the jury to conclude that the defendant and Ms. Estill were both concerned with the commission of the crime.
(b) It is immaterial as to which was the dominant and which the subservient actor/perpetrator/aider/abettor in the commission of a crime. A perpetrator can aid one who stands by as well as one who stands by can aid the principal perpetrator. RCW 9.01.030 makes every person concerned in the commission of a felony a principal. The theory of that wording is that one is guilty as a principal if evidence is present that the crime charged was committed and the defendant was concerned in its commission even though it cannot be proven that the defendant himself performed the pivotal overt act.
(c) The instruction, even if held to be erroneous, was not prejudicial since it could not have affected the final outcome of the case. State v. Britton, 27 Wn.2d 336, 178 P.2d 341 (1947).
Tn Hagan v. Commonwealth, 179 Ky. 201, 207, 200 S.W. 336 (1918), in a homicide charge against a wife and husband, an aiding and abetting instruction was held to be prejudicial because there was “absolutely no evidence connecting her husband with the homicide, . . .” The giving of the instruction would have inferred that the court felt there wa$ some evidence on which to base participation by another. Here there is evidence connecting Taplin and Lstill with the crime.
Tn United States v. Horton, 180 F.2d 427 (7th Cir. 1950), the defendants were jointly charged with the felonious sale of marijuana. The court instructed the jury that one of the defendants might be found guilty if he aided or abetted any other person. The instruction was held erroneous because there was “no proof” that someone else had committed the offense. In the instant case under the circumstantial evidence, there is, as quoted in the Horton case, “satisfactory evidence not only of his participation but also that another for whom he was acting was connected with the offense.” (Italics mine.)