(concurring specially.) I concur in the reversal of the judgment in this case on the ground.that the learned trial court erred in hearing the evidence as to the issue of former acquittal without the intervention of the jury, and in refusing to submit that issue to them. State v. Kieffer 17 S. D. 67, 95 N. W. 289. Upon the other questions discussed by Mr. Justice Fuller I express no opinion.
Haney, P. J. I concur merely in the conclusion that the judgment of the circuit court should be reversed. . .