*1 49 Dakota, of STATE South Plaintiff Appellant,
and
v. Billy OLSON, G. Defendant Kludt, E. Douglas Atty. Gen., Asst. Appellee. and Pierre, for plaintiff appellant; and Mark V. No. 13794. Meierhenry, Gen., Atty. Pierre, on brief. Supreme of Court South Dakota. Ronald R. Johnson of Johnson & Kelley, 15, Lemmon, for
Argued Feb. defendant and appellee. 1983. 18, May Decided 1983.
DUNN, Justice. This is appeal acquit- an from an order ting Billy (appellee) G. Olson of aggravated entering assault and simple a conviction of in place. assault its Appellee charged was aggravated with pursuant assault to SDCL 22-18-1.1 for attempting to Dugan run over Patrick with pickup a During truck. cross-examination appellee, of the state’s attorney ap- asked pellee, “Have you charged been with as- sault battery question and ... ?” The brought objection an appellee’s from coun- sel hearing and resulted in a outside the presence of jury. During the the hearing, the trial court ruled that even though ap- pellee previously had a guilty plea entered offense, to a charge misdemeanor the for attorney pursue the state’s could not that line of questioning. Appellee’s motion for mistrial was denied jury and the was ad- to disregard question. monished the days Several jury after the returned a assault, guilty aggravated verdict for appel- lee’s a attorney filed motion with the trial court seeking “acquittal aggravated as- [of or in the of judgment alternative sault] acquittal aggravated of assault and convic- simple tion of or assault in the further alternative for declaration of mistrial and a new trial.” In a supporting appel- affidavit provided motion,-alleg- lee rationale for the jurors ing prior that a altercation discussed appellee attorney’s between and the state’s mistakenly father and believed this was the prior to offense referred when the state’s prior as of attorney inquired to convictions battery. assault and *2 50 right to expand the jurors does not State’s wise" hearing, several subsequent
aAt words sim- contrary, the the these prior discussed On appeal. had in fact they testified on the trial grounds The trial which refer to the during ply deliberations. assault prejudi- was an indict- the a “motion to dismiss grants court concluded discussion court mo- thereupon appellee’s we see granted Although cial and or information.” ment aggravated of assault acquittal for the by tion the action taken problems with serious guilty simple of appellee case, and found charge in we must con- this the trial court the state’s The trial court denied assault. give us does not that 23A-32-4 clude SDCL and the attorney’s request for a mistrial ag- acquittal this of jurisdiction to review trial order. now the court’s appeals State of simple conviction gravated assault and assault. this must whether Initially, we determine appeal. this jurisdiction has to hear
court we do have the conclude not we Since not 23A-32-^4 does Appellee contends SDCL of this appeal to the power review State’s the at hand. appeal in case authorize an order, appeal the must be dismissed. agree. We jurisdiction to entertain This court’s C.J., FOSHEIM, and and WOLLMAN v. De statute, State is by limited appeals JJ., MORGAN, concur. vine, 257 (S.D.1977), and it is 606 N.W.2d to expand right the to the legislature left to HENDERSON, J., specially. concurs Stunkard, v. 311, 133 State 28 S.D. appeal. HENDERSON, Thus, (specially concur- legislature if the Justice (1911). 253 N.W. a jurisdiction of provided not us with ring). has to power we are without appeal, criminal Although this does not agree I that Court Texley, the case. State v. 275 N.W.2d
hear I also jurisdiction appeal, to hear this have Nini, v. Nuwi (S.D.1979); State 262 872 seri- majority the that there are agree with (S.D.1978). N.W.2d 758 the with the action of trial problems ous the prior case; concedes that to The the namely, State in this that court taken to right appeal the 1979 amendment State’s court, effect, of finding in entered a trial Texley, supra; v. State was limited. State A trial court can- guilty simple on assault. Nini, statute, supra. Nuwi prior The to v. a jury accused of trial and deprive not an amendment, give clearly did not this its as a finder of fact. See substitute itself appeal. to The jurisdiction hear this Co., court Supply v. Linen States Martin United contends, however, the 1979 State that 1349, 572-73, 1355, 564, 97 51 U.S. S.Ct. 430 statutory all barri amendment 642, (1977). “remove[s] 652 L.Ed.2d * appeals.” the Specifically, ers to state phrase the State believes the of insertion by or otherwise” the statutory grounds
“on right to the State’s
legislature expanded
appeal. statute, we reviewing the amended
After agree to with the that we are unable
find amendment. interpretation of this
State’s statutory grounds or other- phrase “on
The * offense, trial; charging 23A-32-4, amended, but new an motion for a as as follows: reads SDCL preclude appeals bar or another' such shall not attorney by appeal prosecuting a a in An prosecution the same of- the for of defendant may Supreme the be taken to criminal case fense, except is affirmed where the dismissal , right, a a matter of from Court of-this state as by Supreme the Court decision; judgment, circuit court or order of a (Insertions the version are indicated into 1978 ruling-of magistrate sustaining a motion to a or by the statute are from 1978 indictment; italics. Deletions or com- dismiss an or information by overstrikes.) otherwise, statutory grounds indicated plaint granting or on or judgment a motion arrest of or a for