State v. Shape , 1994 S.D. LEXIS 83 ( 1994 )

HENDERSON, Justice

(concurring in part and dissenting in part).

I concur in the entirety of this opinion with the exception of Issue III, Severance of Defendants. Granted, the majority opinion grants the trial court leeway to make a final determination on this issue. Notwithstanding, it is my opinion that severance of the defendants would be appropriate because of Rindal’s proposed testimony that he relied upon Shape’s management of the cattle in South Dakota and that he accepted the statements, direction, and representations of Shape. Therefore, if cattle were missing, as Rindal’s proposed testimony implies, it must have been Shape’s fault.

Shape has expressed that he will not testify. Acceptance of Rindal’s version will result in more than mere hostility, it could preclude Shape’s acquittal. It may also force Shape to exculpate himself. In my opinion, prejudice to both defendants will arise. State v. Reiman, 284 N.W.2d 860, 866 (S.D.1979).