State v. Pacheco

495 P.2d 808, 27 Utah 2d 281, 1972 Utah LEXIS 966

Opinions

On Rehearing

HENRIOD, Justice:

Pacheco was convicted of stealing a rifle. On appeal he says the court erred in giving an instruction on aiding and abetting. We agree and reverse for that reason. It was conceded that there was no evidence of aiding and abetting, but the state says the instruction was not prejudicial. It seems almost axiomatic that instructions, must bear a relationship to evidence reflected in the record, and we cannot enjoy the luxury of sustaining a conviction on trite aphorism unsupported by any kind of evidence.

To convict one of larceny by aiding and abetting, under Title 76-1-44, Utah Code Annotated, 1953, the state must prove that a larceny has been committed, since one cannot aid and abet oneself. No one was proven guilty of larceny except the defendant, and since there was no evidence of any aiding and abetting (as often there is. in cases where one aids and abets the commission of larceny), an instruction under the particular facts of this case was confusing and unnecessary, — and in our opinion, contrary to that of the state, it was. prejudicial, — and we so hold.

The case is remanded for a new trial.

CALLISTER, C. J., and TUCKETT, J., concur.