The indictment in two counts alleged that one Gary Lee Howard (1) smuggled marihuana in violation of 21 U.S.C. § 176a, and (2) failed to register and pay the special 'tax on illegally imported marihuana in violation of 26 U.S.C. § 4755(a) (1). Appellant, a co-defendant, was convicted in a court trial and sentenced for aiding and abetting in the commission of the offenses.

Gary Lee Howard was observed by government agents, first in Mexico with a sack of his back and shortly thereafter was observed on the United States side of the border. The sack contained marihuana and Gary Lee Howard was arrested shortly after 8:30 PM on September 20, 1967. His offense was complete when he crossed the border.

The evidence shows that all the activities of appellant were observed by government agents while appellant was in the United States and during a period of time commencing after 11:15 PM.

The evidence does not support the finding of guilt in aiding and abetting the offense committed by Gary Lee Howard.

Judgment is reversed and the case is remanded to the district court.