(dissenting). This writer respectfully disagrees with the majority opinion in this case, because this writer believes certain issues have been improperly framed and improperly answered, and because certain unwarranted findings of fact have been made for the first time on this appeal.
Certain facts, left out of the majority opinion, should be added. On the afternoon of February 17, 1974 three men were leaving the construction site of the high school near the Village of Roscommon, Michigan. One of the men, a Mr. McDonald, had had some work to attend to at the site and had been accompanied there by his son and a friend. As they left the site, Mr. McDonald’s son stopped the automobile and got out to secure a cable across the driveway into the site. At this time, a caravan of approximately 20 to 30 cars arrived on the scene. A man from one of the cars approached Mr. McDonald’s son and demanded the lock for the cable. This man took the lock and threw it away in a snow bank. When Mr. McDonald began to exit from the car he was threatened by some of the individuals present. By that time there were apparently at least three persons (other than the *619occupants of the McDonald car) standing at the site. A blue station wagon was blocking the McDonald car’s exit from the site. Two men who exited from this car were later identified by Mr. McDonald as defendants Smock and Sorenson. An unidentified individual demanded the keys from the McDonald car, and when they were not immediately forthcoming either Smock or Sorenson began letting the air out of McDonald’s tires. At this point the caravan of cars was directed into the construction site by a man who was later identified as defendant Smith. The caravan of cars entered the construction site, and at least some of the occupants of the cars committed actual physical acts of vandalism and arson. At least eight separate fires were set and some buildings, some construction equipment and a trailer were destroyed. The items of property that were destroyed were not visible from the entrance way to the site, but the fires and the smoke were visible. These events had been witnessed by a neighboring landowner who notified the Roscommon County Sheriffs Department. When the sheriff arrived, he immediately blocked the exit from the construction site, but most of the vehicles had already left. As a result of this blockade, the Bradley brothers were arrested as they attempted to leave the scene in a pickup truck. They are not parties to this appeal. Also as a result of the blockade, defendants Smock, Griswold, Sorenson and Parson were arrested as they attempted to leave the scene in a blue Plymouth station wagon. Defendant Smith was arrested at the gate upon being identified by an eyewitness as the person who had directed traffic into the site. Smith explained his presence at the site by saying that he was going fishing. Defendant Griswold’s fingerprints were found on a beer can which was found inside the construction *620site. The smell of fuel oil was detected on defendants Sorenson and Parson, and there was testimony that fuel oil had been used in starting the fires.
Only one witness attempted to testify as to the actual number of people who had entered the construction site. He did so under the following questioning by Mr. Harris, one of the defense attorneys:
”Q. Now, sir, could you advise me as to whether or not some of these twenty automobiles which you described as having approached the site caravan style had more than one occupant over and above the driver?
”A. Many of the vehicles did.
"Q. Did you observe how many vehicles had more than one occupant?
"A. No, sir.
”Q. Is it your best estimate today that there were at least twenty automobiles in the caravan?
"A. At least twenty, yes, sir.
"Q. Did you actually count these automobiles or is it merely an estimate?
'A. I stopped over ten.
”Q. That, sir, is not responsive.
"A. No, I didn’t count all the vehicles, sir. I am sorry.
”Q. Could there have been, based upon that statement, thirty automobiles?
"A. The only thing I could say is that there were over twenty.
”Q. Could there have been thirty?
"A. There could have been. I didn’t count all the vehicles entering.
”Q. Would you say that some of these vehicles, whether it be twenty or thirty — I recognize that you were not counting them one by one — could have contained, through your various observations, as many as four or five people?
"A. Some of the cars that went in, yes. Some contained more than one and some contained four or five.
*621"Q. All right. Is it a fair statement to say then that if one were to add up all of the drivers and all of the occupants that you observed that it could be somewhere in the area of forty to perhaps a hundred people who were involved in this caravan? Again, I recognize you had no opportunity to specifically count each and every one individually.
”A. It would be a fair statement to say there were over forty.
"Q. Are you prepared to state that there were or there could have been up to one hundred individuals altogether?
"A. That is something that is beyond reason. It is unlikely.
”Q. I recognize that you cannot testify honestly to a maximum figure, but at this time there might be some way to estimate the amount of individuals in this caravan?
"A. No, sir.
”Q. But in any event, you are satisñed that there were at least forty, as a minimum; is that not true?
”A. I think that would be a fair assumption. ” (Emphasis supplied.)
On another day of the trial, after the defense had made a motion for a directed verdict the prosecutor Mr. Hess in answering said this:
"I think your Honor has heard ample and crystal clear testimony that the seven defendants had opportunity to commit a criminal arson. There is ample testimony to establish that there was twenty or thirty cars which contained ñve people per car entering the construction site for a common purpose and that they entered caravan style. There is testimony that there was more than ordinary amount of activity and a man was directing trafile by the gate. Several men had been detained as they were exiting from the site at the gate. When the cars left, they were let go.
"The fact that there may be more guilty persons than *622the seven that were apprehended, certainly does not make the seven men innocent.” (Emphasis supplied.)
This hasty summary by the prosecutor is certainly not evidence in the case. It is certainly not a concession by him that there were somewhere between 100 and 120 people present when his own witness testified that the most he would safely say were present was 40 people. In spite of the fact that the jury would have had every right in finding that there were only 40 people at the construction site, the majority finds that "in this case 100 to 120 persons, more or less, participated in a trespass which resulted in vandalism, malicious destruction of private property and arson”.
The majority feels compelled to agree with defendants when they state that they cannot be found guilty by association. Certainly, no one would argue with that legal proposition. As a matter of fact, the trial judge was certainly aware of it when he instructed the jury thusly: "/ want to further advise you that you are instructed that mere presence at the scene of an alleged crime is not sufficient to convict these defendants of committing any criminal offense. ” (Emphasis supplied.) The above quote shows beyond a doubt that the trial judge was aware of the correct law and that he correctly instructed the jury. The jury nevertheless found the defendants guilty. We cannot assume that the jury acted contrary to such a crystal clear instruction. There was evidence other than mere presence which the jury evidently believed. The majority also states that "the defendants were apprehended as they attempted to scatter in different vehicles”. Such a statement is simply not supported by the evidence in the transcript. While the statement made by the majority depicts a scene of great confusion with random *623arrests being made on a catch-as-catch-can basis, that does not in any way describe events as they occurred. In fact, defendants Smock, Griswold, Sorenson and Parson were arrested a full 10 to 15 minutes after the sheriff and his deputy had arrived and blocked off the exit to the construction site. This could hardly be termed "scattering”. The majority then states that it was the prosecution’s theory that these defendants and all the other trespassers were accessories to the crime of arson. While the prosecutor has never advanced that theory, and indeed has no need to since only seven defendants were on trial, it is certainly not beyond the realm of possibility. The statute defining arson and defining aiding and abetting (cited by the majority) does not end with "unless the crime is committed by more than 50 individuals” or "unless the crime is committed by more than 100 individuals, in which case the act will not constitute a crime”.
Turning now to the specific defendants, it seems that the majority believes defendant Smith to be absolutely blameless. In fact, the case against him is very strong indeed. MCLA 767.39; MSA 28.979, provides:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
While the above-quoted statute would be sufficient to convict Smith of arson without proving he actually set the fire, the statutory "definition of 'burn’ ”, MCLA 750.71; MSA 28.266, further provides: "The term 'burn’ as used in this chapter *624shall mean setting fire to, or doing any act which results in the starting of a fire, or aiding, counseling, inducing, persuading or procuring another to do such act or acts.” This statutory definition of the word "burn” makes the aider or abettor of an arsonist himself an arsonist without reliance on the general statute. The question therefore was not, as the majority seems to think, whether or not defendant Smith actually struck a match and lit a fire. The question was whether or not he was an arsonist as defined by the Michigan statutes on point. A properly instructed jury found that he was.
Since the "aiding and abetting” theory is inherent in the arson statute, the charge against Smith did not fail simply because of a lack of evidence linking him to the actual setting of the fires. It is true that to convict a defendant under an accessory theory, the guilt of the principal must be shown. People v Williams #1, 45 Mich App 623; 207 NW2d 176 (1973). Of course, this does not mean that the principal need necessarily be convicted. People v Smith, 271 Mich 553; 260 NW 911 (1935), People v McGuire, 39 Mich App 308; 197 NW2d 469 (1972), People v Sharon Brown, 35 Mich App 330; 192 NW2d 671 (1971). In this case there is no doubt that an arson was committed. The parties have so agreed. Therefore, there must somewhere be a guilty principal. Of course, as the jury was properly instructed, mere association alone is not enough to implicate individuals with others involved in a crime. People v Fields, 49 Mich App 652; 212 NW2d 612 (1973). The evidence against Smith, however, indicates more than a "mere association”. There was testimony that defendant Smith had something to do with preventing the McDonald’s car from leaving the site and *625there is ample testimony that defendant Smith directed the other cars into the construction site where their occupants perpetrated the arson. The majority states that from the entrance way to the construction site, the actual buildings, trailer, and equipment which were subsequently burned could not be seen by defendant Smith. Actually, there was testimony that the flames and smoke could be seen from a very great distance indeed. The fact is, there is no requirement that an aider or abettor be able to actually see the commission of the crime. He may be constructively present. People v Horowitz, 37 Mich App 151; 194 NW2d 375 (1971), People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969).
The majority’s reliance on People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), is misplaced. The Davenport case concerned possession of heroin. That case held that a defendant could not be convicted of possession of heroin when he was arrested on the second floor of a dwelling and heroin was found in the basement of the dwelling, especially where the basement was shared with several other individuals. In Davenport the defendant was within the house as of right. It was where he lived. The fact that he was rightfully in one part of the house and that heroin was found in another part of the house which was under the common control of several individuals was held not sufficient to convict him of possession of heroin. It was equally conceivable that any of the occupants of the house may have possessed the heroin in question. In this case, however, none of the defendants had any right whatsoever to be at the site where the arson took place. If there is some theory that is consistent with their innocence, it is so far unknown. Unlike defendant *626Smith, they did not all claim that they were going fishing. At any rate, Davenport is no authority for the proposition that the prosecutor must himself conjure up every possible theory consistent with the innocence of the defendants, ridiculous or otherwise, and then proceed to rebut it himself. If there is some theory consistent with innocence which would explain why defendants Smock, Gris-wold, Sorenson and Parson saw fit to trespass in order to be present at the scene of a serious crime, then it would seem to be the duty of the defendants to make that theory known. Of course, in this case the prosecutor did not advance any theory which would indicate that the defendants were innocent. The defendants themselves were unable to advance any such theory. However, the jury must have felt that the evidence produced by the prosecutor not only indicated the guilt of the defendants, but was inconsistent with any other reasonable hypothesis upon which their innocence could have been maintained. This must be so because they returned a verdict of guilty after the following instruction:
"To justify the inference of guilt from circumstantial evidence, the facts proven from which it is asked that the guilt of the defendants be inferred must be consistent with each other and must not only clearly point to their guilt, but must be inconsistent with any other reasonable hypothesis upon which their innocence may be maintained.”
It is apparent therefore that the proper law was applied and that the jury found that the evidence adduced was inconsistent with any reasonable hypothesis of innocence. Such a finding on the part of the trier of facts should not be ignored upon review. Especially where, as here, the jury’s fail*627ure to make exactly such a finding is alleged as error. Simply put, the jury evidently rejected all hypotheses of innocence including the claim that all construction workers smelled like fuel oil.
The majority states that since there were 100 to 120 persons at the scene and only seven or eight fires, that it seems unlikely that each of the persons at the scene participated in the setting of the fires. Of course, this constitutes a finding of fact by the majority that there were 100 to 120 persons at the scene in the absence of any testimony whatsoever to that effect. But further, it is not correct logic to assume that there has to be some automatic limitation on the number of either participants or aiders and abettors to a crime. If the theory of the majority were true, then criminals could truly find safety in numbers. Even if there were 100 or 120 or more persons at the scene of the crime, if they all participated or aided or abetted in the setting of a fire then they are all guilty of arson. It makes no difference if there was one fire or 100 fires or if there were two parties to the crime or 120 or more parties to the crime. The majority says that somehow the actual number of the persons present at the scene has caused "broken links in the chain”. The majority does not however point out just what those broken links are. Finally, it is again relevant to note that we do not have 100 or 120 defendants on trial. There is no need to conclude that either all of the persons present at the scene are guilty or that none of the people present at the scene are guilty. The prosecution had no opportunity to prove the guilt of the entire mass of people who had been present. Most of them did not remain to discuss theories of group innocence after the fires had been set. Certainly the fact that it cannot be proven that the majority *628of the group was guilty is not in itself proof of these particular defendants’ innocence.
Finally, the majority quotes the trial judge as saying that he thought the prosecutor had a very weak case. This statement was made by the trial court just before he denied defendants’ motions for directed verdict. He followed it quickly with a statement that he believed the testimony of one of the witnesses was enough to send the case to the jury. If anything, the statement by the judge was an erroneous interjection of his own belief of the facts. He did, however, concede that there was enough evidence which, if believed by the jury, was sufficient to convict the defendants.
At any rate, the thoughts of the trial judge as to the evidence, once it had been established that the case was to go to the jury, were totally irrelevant both at the trial and on this appeal. The majority opinion ends with this quote from the opening statement of the prosecutor: "It is not a clear case because of circumstantial evidence. We will have four or five people that were inside this site and it all points to the defendants and say that these men lighted the match to burn these particular articles.” The majority then questions why the prosecutor never produced such evidence. The answer, as we have seen, is that he never had to produce such evidence. He simply did not have to prove, under the statute, that any of the defendants had actually "lighted the match”. Perhaps the prosecutor overstated his case in his opening statement. That is certainly not grounds for reversal.
Being convinced that there are no grounds for reversal in this case, I vote to affirm.