¶1(concurring in part & dissenting in part).
¶2I concur with the majority opinion except for that portion which relates to the lack of necessity of accomplice instructions, from which I dissent.
¶3In this case, (“Rufener II”), the majority is furthering the error made in State v. Rufener, 392 N.W.2d 424 (S.D.1986) (“Rufener I”), concerning accomplice testimony and instructions. The error is the continuing refusal to require accomplice instructions. This error is based on the mistaken conclusion that “Persing was no more than a purchaser at the time of the alleged criminal acts.” Persing was more than a purchaser — he was a business partner with Rufener. Persing testified that he and Rufener had a “business arrangement” in which Rufener gave Persing marijuana and received money only after Persing distributed it to others. Persing also testified that he arranged for his girlfriend to rent a hotel room for Rufener, that he helped Rufener package marijuana, and that he received marijuana from Rufener once or twice a month for two to three years. Persing was an accomplice because he in some manner knowingly and with criminal intent participated, associated or concurred with Rufener in the commission of the crimes for which Rufener was convicted. State v. Dominiack, 334 N.W.2d 51 (S.D.1983); State v. Johnson, 81 S.D. 600, 139 N.W.2d 232 (1965).
¶4I further dissent for all of the reasons set forth in my dissent in Rufener I, supra, which concerned accomplice testimony and instructions. As stated therein:
The necessity of viewing the testimony of a confessed drug dealer with distrust is even more evident when one considers that they are ⅛ trouble’ with the law, their illegal business is stopped, and they are generally looking for the best possible deal from the State with nothing to sell or trade except testimony.
¶6The failure to require an accomplice instruction violates the letter and spirit of SDCL 23A-22-8 which provides in part: “A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense.”
¶7MAJORITY’S AUTHORITIES?
¶8In support of their position, the majority cites to:
(1) Rufener I, supra, (reversed on other grounds);
(2) State v. Byrum, 399 N.W.2d 334 (S.D.1987);
(3) State v. Fox, 313 N.W.2d 38 (S.D.1981); and
(4) Johnson, supra.
¶9Under the annotations to SDCL 23A-22-8, the one referencing Fox, supra,states:
Where the witness purchased illegal drugs from defendant to resell to a paid police informer, and there was nothing in the record to indicate the defendant knew the witness would resell the drugs to the informant, the crimes of illegal possession and distribution of the witness and the defendant were separate and distinct acts and the witness was not an accomplice to the crimes of the defendant; therefore, testimony of the witness did not have to be corroborated to sustain the defendant’s conviction, (emphasis added)
¶10In other words, Foxis authority for Rufener’s position and not the State’s. This is so because it implies that if the defendant knew the witness would resell the drugs to the informant, the witness would have been an accomplice to the crimes of the defendant.
¶11The fourth case cited by the majority is Johnson, supra.It is interesting to note *747that this case is cited in the annotations under SDCL 23A-22-8 as “DECISIONS UNDER FORMER LAW.” The reason is that at that time the law provided for accessories before and after the fact. The headnote reads:
Where the facts concerning the issue of whether witness was an accomplice were susceptible of different inferences, the court properly submitted such matter to the jury and instructed them as to the need for corroboration of the testimony of the witness if they found him to be an accomplice.
¶12In other words, the question should go to the jury. In Rufener’s case, it would not be error for the trial court to rule as a matter of law that Persing was an accomplice of Rufener because he was involved in a business arrangement involving crime. Even if it was proper for the court to refuse to give the instruction that Persing was an accomplice as a matter of law, it certainly was proper and necessary to give an instruction for the jury to determine whether or not Persing was an accomplice. To fail to do so was reversible error.
¶13The Johnsondecision is frequently cited for the definition of an accomplice as follows:
An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial. To render one an accomplice he must in some manner knowingly and with criminal intent participate, associate or concur with another in the commission of a crime, (citation omitted).
¶1481 S.D. at 606, 139 N.W.2d at 236.
¶15Recent cases have improperly cited and relied upon the first part of the Johnsonquotation and have omitted citing the second part. This is error. It is clear that both sentences must be read together and it is further clear that an accomplice instruction should be required when two people are engaged together in the commission of a crime. Here, Rufener and Persing were involved in the commission of a crime. The jury should have been instructed to determine whether or not Persing was an accomplice under South Dakota Pattern Jury Instructions (Criminal) 1-14-7: Accomplice — Jury to Determine Whether Witness was an Accomplice. To refuse to give this instruction was reversible error.
¶16(dissenting).
¶17I would adhere to the Rufener I opinion. I am still convinced the objection to the pistol on relevancy grounds was insufficient under SDCL 19-9-3(1) and the case authority cited in Rufener I, 392 N.W.2d at 427. As pointed out in our earlier opinion on this case:
The reason for the rule [dictating that an objection worded in terms such as ‘incompetent, irrelevant and immaterial’ is too general to preserve an issue on appeal] is two-fold: (1) to enable the trial judge to understand the precise question upon which he has to rule and to relieve him of the burden of searching for the basis of the objection; and (2) to afford the opposing party an opportunity to obviate the objection.
¶18Id. To my mind, the current majority opinion does a disservice both to judges who must rule on such generalized objections, and to attorneys faced with answering such objections.