238 N.W. 643 | S.D. | 1931
Appellant was convicted of adultery. The information charged that the crime was committed "between the tenth day of December in the year 1927 and the first day of December 1928." The principal witness for the state was the other party to the alleged adultery. She will be referred to herein as the prosecutrix. She testified to an act of intercourse on August 4, 1928, as a result of which a child was born on May 11, 1929. She also testified that from about December 10, 1927, until December 1, 1928, she had sexual intercourse with accused "a couple of times, maybe three times a week." *168
At the conclusion of the state's case and again at the conclusion of all the evidence, defendant moved that the state be required to elect on which act it relied. The motions were denied. Respondent contends that the opening statement of the state's attorney that the state expected to show that the "intercourse took place on or about the fourth day of August, 1928," made it unnecessary for the state to elect. Respondent cites in support thereof State v. Rash,
The foregoing compelling a reversal, we do not discuss other errors less likely to occur on a subsequent trial.
The judgment and order appealed from are reversed.
CAMPBELL, WARREN, and RUDOLPH, JJ., concur.
POLLEY, P.J., not sitting.
ROBERTS, J., disqualified and not sitting.