State v. Boughner

Corson, P. J. This case comes before us on rehearing, the opinion being reported in 59 N. W. 736, 5 S. D. 461. At the conclusion of the evidence for the state, which it was claimed tended to prove several distinct sales, the plaintiff in error moved the court to compel the state to elect upon which sale it would rely for a conviction. The motion was denied, and the counsel for the plaintiff in error duly excepted. In our opinion we arrived at the conclusion, from the evidence assumed to be before us, that there was really but one sale proven, upon which the jury would have been warranted in finding the defendant guilty, and that this court would presume that it was for such a sale the jury found the defendant guilty, and therofore no reversible error was committed by the court in denying the motion. In the petition for a rehearing our attention was called to an amended abstract that had been inadvertantly overlooked in preparing the opinion, and which sup 104 plies the evidence necessary to show two or more sales, upon any one of which the jury would have been justified in finding the defendant guilty. This being so, the ground upon which the ruling of the court below was sustained no longer exists, and the question must be decided upon the facts as they appear from the two abstracts. The-case of State v. Valentine (in which this court hands down an opinion at this time), 63 N. W. 541, presents identically the same question. The court has fully considered and discussed the question in that case, and arrived .at the conclusion that when evidence is given in such a case tending to prove two or more sales, upon any one of which a jury might find the defendant guilty, the court should compel the state to ele.ct upon which sale it will rely, before the defendant can be z-equired to put in his defense; and the judgment in that case was reversed, and a new trial granted. For the reasons stated.in the opinion in that case the former decision of this court must be reversed, and the judgment of the circuit court reversed, and a new trial granted; and it is so ordered.