The opinion
BRETT, Judge
(dissenting.)
I respectfully dissent to this decision. In the first instance, I believe defendant was represented by ineffective counsel. Notwithstanding that defendant was represented by counsel of his own choosing, that representation was ineffective, which resulted in his failure to receive a fair trial. Trial counsel was discharged at the conclusion of trial and the appeal lodged by new counsel, Larry Weber.
A quick survey of the record reveals numerous instances when the prosecutor *346 asked leading questions suggesting answers to be received, but defense counsel objected only twice during trial, and he objected once during closing argument. Admittedly, the number of objections is not alone the criteria to indicate whether or not counsel was effective. But- when the record is considered in its entirety, coupled with the fact that subsequent to trial that particular attorney was suspended from further practice of law for other reasons, plus the fact that because of trial counsel’s negligence defendant was required, with another attorney, to exercise his rights under the post conviction procedures in order to obtain his appeal, all these factors considered together cause me considerable concern. While the trial might not have been a mockery, it certainly fails to meet my standards of effective representation.
Secondly, I believe the evidence is insufficient to sustain this conviction. Defendant was convicted on the testimony of one witness, Gregory Scott Butler, the undercover agent. The insufficiency of that witness’ testimony results from his conjecture and uncertainty to such an extent that I cannot in good conscience place my approval on this decision. On cross-examination Mr. Butler was asked, “Did you have a very clear view of Scotty?” (defendant herein]. Mr. Butler answered, “No, sir. Not a very clear view.” Nonetheless, throughout his testimony he related how Edward Ortega would confer with the defendant, who would respond by a movement of his head. 1 During direct examination Mr. Butler showed his uncertainty as to what actually happened after he got into the pickup with defendant and Ortega. The prosecutor inquired what happened after Mr. Butler got into the pickup. After Mr. Butler related how he gave Ortega the fourteen dollars he continued his testimony, “And Scotty McKee then, I — Apparently it was dark. I couldn’t see, but he apparently — It was in his hand. He reached across Ortega and handed me the baggie.” Mr. Butler must have suffered some sort of conscience pangs, which he overcame with the realization the conviction must be obtained at any cost to maintain his 100% record of convictions. Mr. Butler could either see what happened, or he could not see. It is from this testimony I draw the conclusion of conjecture. “Apparently” is not sufficient testimony to sustain this conviction as I view the facts. To my way of thinking this is not the type testimony which should be permitted to send a young man, twenty years of age who has no police record, to the penitentiary. I believe the defendant is entitled to receive a new trial.
Next, I believe the trial court’s instruction number 4 was improper, even when considered with all the other instructions. The instruction paraphrased the statute found in 21 O.S. 1971 , § 172; and as it was stated, it left the impression with the jury that notwithstanding the testimony heard the defendant aided and abetted Edward Ortega in the sale of the marijuana. That instruction recited:
“You are instructed that under the law of this state all persons concerned in the commission of an offense, whether they directly commit the act constituting the offense, or aid, abet, or assist in its commission are equally guilty.”
As I ascertain the facts, one question for the jury to determine was whether or not the defendant participated in the- sale. If the jury believed that he did participate, then he was not an aider to the sale. But under this instruction the jury was left with the impression that the trial court concluded that the defendant aided in the sale and therefore he must be found guilty. In Potter v. State, 93 Okl.Cr. 352 , 228 P.2d 204 (1951), this Court cited with approval the statement found in Moody v. State, 11 Okl.Cr. 471 , 148 P. 1055 (1915), which was:
“The trial court is never warranted in giving an instruction which has the ef- *347 feet of determining' [controverted] questions of fact.”
That decision continues citing Monaghan v. State, 10 Okl.Cr. 89 , 134 P. 77, 80 , 46 L.R.A., N.S., 1149, as follows:
“The law requires the court, not only to abstain from positive expression as to the weight of the evidence, but to avoid even the appearance of an intimation as to the facts, and to so guard the language of its charge to the jury, which is the law of the case, that no inference, however remote or obscure, may be drawn by the jury as to the weight of the evidence.”
Under the instruction given, the trial court specifically informed the jury that the defendant was an aider to the sale and therefore he was guilty.
In Smith v. State, 66 Okl.Cr. 408 , 92 P.2d 582, 585 (1939), this Court entered into considerable discussion of what is required under 21 O.S., § 172 to show aiding or abetting as follows:
“In the case of Moore v. State, 4 Okl.Cr. 212 , 111 P. 822, 824 , it is said that: 'To constitute one a party to a crime * * * it is necessary that such person be concerned in the commission of the offense — that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel, and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.’ And see Polk v. State, 26 Okl. Cr. 283, 224 P. 194 ; Carrico v. State, 16 Okl.Cr. 118 , 180 P. 870 .
“The last expression of this court is found in the case of Olin Anderson v. State, [ 66 Okl.Cr. 291 ] 91 P.2d 794 (not yet reported [in State Reports]), wherein this court held under our Code of Criminal Procedure, Sec. 1808, Oklahoma Statutes Annotated, Title 21, Section 172, that under this section ‘to be concerned in the commission of crime as a principal, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.’ Citing the previous cases herein and also many authorities from other jurisdictions to a like effect.
“It follows from the foregoing that at most the testimony on the part of the State tends to create only a suspicion of guilt, and does not constitute sufficient proof of the material ingredients of the offense charged to establish the guilt of the defendant, Bernice Mosier, beyond a reasonable doubt.”
Speaking through Chief Judge Murrah, the Court of Appeals stated in King v. United States, 402 F.2d 289 (10th Cir. 1968), wherein King was charged with aiding and abetting the transportation of forged securities in interstate commerce, that Court stated the following:
“The trial court properly instructed the jury, in substance, that to be guilty of aiding and abetting by words spoken or acts done the defendant must wilfully associate himself in some way with the criminal venture by participating in it as something he wishes to bring about and by seeking to make it succeed by some action on his part. [Citations omitted] *348 Mere presence at the scene of the crime with knowledge that the crime is being committed will not suffice to constitute aiding and abetting unless the jury is convinced beyond a reasonable doubt that such defendant was doing something to forward the crime and that he was a participant rather than merely a knowing spectator. [Citations omitted]”
As I view the record before this Court, none of the requirements set forth in Smith v. State, supra, and King v. United States, supra, as they pertain to aiding and abetting, are present. Therefore, I repeat, I believe the court’s instruction number 4, on aiding and abetting, constitutes reversible error. Had a proper instruction been given to the jury, the jury might have found the defendant not to be an aider or abettor, and the jury’s verdict of conviction might have been different. Therefore, I dissent to this decision. I would reverse and remand it for a new trial.
. After this trial Edward Ortega entered a plea of guilty to the same charge of sale of the one baggie of marihuana.