State v. Johnston

Rather than reversing and remanding for re-sentencing, I would reverse and remand for a new trial on all charges.

GRAND THEFT COUNTS

Although I agree with the majority’s analysis of the “continuing plan or scheme” principle, I assert that it is misapplied. It is for the jury, and not this Court, to ascertain whether the conduct of defendant amounted to more than one offense.

In State v. Kieffer 17 S.D. 67, 72, 95 N.W. 289, 291 (1903), cited by the majority, we said:

It was for the jury to say, therefore, under the instruction of the court, whether or not the animal which the accused was charged…