*1 286 permit, takes, Any person
evidence
that
there was no such
who
or exercises con-
intent,
over,
continuing
guilty
property
thus find him
trol
of another with intent
deprive
it,
In
guilty
other thefts.
no such in-
him of
is
of theft.
presented
jury.
struction was
to the
SDCL
specifical-
While
40-19-25 does not
Many
jurisdictions following
the
ly categorize
the
offense
the acts
general
espoused by
majority,
rule
ex
many
contra to such statute
cases
pressly recognize that whether the continu
amount to theft as defined in
22-
SDCL
intent,
plan
ous
ques
scheme or
exists is a
person
30A-1. A
who takes and re-brands
jury.
Kieffer, supra;
steer,
tion for the
See
Peo
appears
another’s
so that it
to be his
514,
ple Bailey,
Cal.Rptr.
own,
11
clearly
v.
55 Cal.2d
could violate the theft statute.
543,
(1961);
I cannot reg-
statement that “violation of the brand
istration and use statutes is not a theft.” not, my opinion, necessarily That is true. statute, 40-19-25, SDCL reads as Appellee, follows: who, Any person with intent to de- JOHNSTON, Richard fraud, cattle, horse, any or marks brands Appellant. mule, own; sheep, not his in- buffalo previous tentionally brands over brand alters, any or in manner defaces or oblit- Supreme Court of South Dakota. brand; previous or cuts out or erates Considered on Briefs March previous brand on cat- obliterates
n Decided Oct. horse, tie, sheep, buffalo or mule is felony. guilty of a Class 5 22-
Theft is defined as follows SDCL
30A-1: *2 1, 1989, September Richard Johnston
(Johnston) charged was with counts of Grand Theft violation of SDCL 22-30A-1 22-30A-17(2). He and SDCL was further charged 17 counts of Misuse or Alter- of ation of Brand SDCL 40-19- was of of Johnston each the 19 counts of Grand and the 17 counts of Misuse Alteration a Brand. He sentenced to 38 Penitentiary on Dakota State on the Misuse or Altera- and tion of a the sentences to run con- currently. appealed
Johnston
his
theft and
misuse or alteration of brand convictions
17164)
30,1990. Briefing
(appeal
May
#
mid-Sep-
filed until
completed
was not
and
tember,
awaiting
appeal,
1990. While
parole
His
incarcerated.
eli-
Johnston was
for June
gibility date was set
24-15-3, Johnston contest-
Under SDCL
date,
eligibility
arguing that
parole
ed his
his sentence was for two
rather than
Judge
imposed by
Moses.
the 38
(Board)
The
Parole
Board
Pardons and
changed
el-
subsequently
parole
Johnston’s
igibility
July
date to
Upon
developments,
notice
these
Judg-
entered an Amended
Moses
Sentence,
he
ment
which
of Conviction
do, clarifying
origi-
jurisdiction to
his
had
Judgment
nal
of Conviction
Sentence.
parole eligibil-
The
then rescinded its
Board
1990 and left
ity
determination
original date
June
as John-
ap-
eligibility date. Johnston
parole
ston’s
Judgment of
peals Judge Moses’ Amended
Sentence, raising
follow-
Conviction
ing issue:
Pierre,
Best,
Asst.
Diane
Tellinghui-
appellee, Roger A.
it entered an
trial court err when
Did the
sen,
Conviction,
Judgment of
with-
Amended
of John-
out
and in the absence
notice
Marshall,
McCullen, But-
Bangs,
Mark F.
ston,
increased
which
Simmons,
ler,
Rapid City, for de-
Foye &
tence?
appellant.
fendant and
HENDERSON, Justice.
DECISION
HISTORY/FACTS/ISSUE
PROCEDURAL
it
not err when
trial court did
Judgment
Con-
an Amended
entered
companion appeal to State v.
This is a
However,
to our decision
due
viction.
N.W.2d 282
Johnston
reversing
Johnston’s 19 convic-
custody
committed to the
County
of the Meade
grand theft,
Sheriff for the
tions
he must be resen-
execution of the sentence.
(See
tenced.
(S.D.1991)).
N.W.2d 282
Further,
Original Judgment
both the
Judgment
Conviction
of Con
argues
Johnston
that the trial court
viction conformed to it.* We are of the
improperly
Judgment
entered an Amended
opinion
that the
oral sentence and
*3
Conviction which increased his
judgment
written
of conviction
years
thirty-eight
sentence from two
to
entirely
made it
clear that Johnston’s sen
years.
argument
We
believe
is without
years
tence was 38
on the Grand Theft
merit.
years
counts and 34
on the Misuse or Alter
ation of a Brand counts.
sentence,
ambigu
An oral
if it is not
However, we will not address the
ous,
only
is the
sentence and the written
arguments
additional theoretical
advanced
sentence must conform to it. State v.
unnecessary
because we find it to be
Cady,
(S.D.1988).
tences with Theft.
Grand resulting (17 part sentences affirm
We or Alteration of Misuse
from 17 counts (on Grand
Brand), 19 counts of reverse conviction modifying same Theft) for re- and remand of Grand
count remaining Grand
sentencing on the
conviction. AMUNDSON,
WUEST, SABERS
JJ., concur.
MILLER, C.J., dissents. (dissenting).
MILLER, Justice Chief my dissent reasons stated
For the 285, I at
State It should be this case. not reach on the for retrial remanded
reversed and therein. addressed issues
substantive Guhin, Deputy P.
John appellant, Mark Barnett, Vandermay, pro se.
Matt AMUNDSON, Justice. grant of appeals from trial court’s of South jurisdiction Appellant, for lack of motion to dismiss (Vandermay). Vandermay of Matt in favor remand. We reverse VANDERMAY, Defendant
Matt Appellee. FACTS 17, 1990, Vandermay, a non- Indian, on Jackson Coun- apprehended Dakota. Supreme Court of South bound- the territorial No. 63 within ty Road Briefs Oct. Considered Reservation. Ridge Indian the Pine aries of over- operating an charged with He was Dec. 32-22- of SDCL weight vehicle at the Vandermay stated 16. Counsel Vandermay was not hearing that motion intend- enrolled or contending he was trial tribe. enrolled ed to be jurisdiction had no that State court high- place which took offenses over country through Indian running ways the tribal affil- Dakota, regardless of offender, and dismissed iation the dismissal appeals action. State’s