McMacken v. State

(on rehearing).

In response to a petition by appellant, rehearing was granted on our decision herein 1 limited however to the issue of the purported incongruity between that decision and our earlier decision in Holy Cross Parish v. Huether, 308 N.W.2d 575 (S.D.1981) decided July 22, 1981. Appellant claims the McMacken decision created an irreconcilable conflict between the language of the two cases.

SDCL 15-2-9,2 on which our decision in McMacken hinges, is an affirmative defense *61that must be pleaded as such. SDCL 15-6— 8(c); see American Property Services, Inc. v. Barringer, 256 N.W.2d 887…