(concurring in part and dissenting in part).
I stand on my writing in Wilcox I as follows:
I concur except that, based on part 2 of my dissent in State v. Rough Surface, 440 N.W.2d 746, 760 (S.D.1989) (Sabers, J., dissenting), I would hold that it was plain error to sentence Wilcox to concurrent life sentences on second-degree felony murder and first-degree manslaughter as there was only one death. See also State v. Baker, 440 N.W.2d 284 (S.D.1989).
This case differs from Rough Surface in that the homicide convictions here are for murder and manslaughter, rather than all murder convictions. However, other courts have held that double homicide convictions for a single death are improper, regardless of the types of homicide. Houser v. State, 474 So.2d *6611193 (Fla.1985); Commonwealth v. Jones, 382 Mass. 387, 416 N.E.2d 502 (1981); Loscomb v. State, 45 Md.App. 598, 416 A.2d 1276 (1980), affd. on other grounds 291 Md. 424, 435 A.2d 764 (1981); Commonwealth v. Monteil, 273 Pa.Super, 94, 416 A.2d 1105 (1979). As stated in Houser, “Florida courts have repeatedly recognized that the legislature did not intend to punish a single homicide under two different statutes.” Id. at 1197. Similarly, there is no expressed intent on the part of our legislature to punish a single death under both SDCL 22-16-9 (murder in the second degree) and SDCL 22-16-15 (manslaughter in the first degree).
I would reverse and remand to the trial court to vacate one of the homicide convictions and for appropriate resentenc-ing.
The majority opinion is riddled with apparent inconsistencies:
First, it notes that “SDCL 22-16-1 defines homicide in the disjunctive.”
Second, it notes that “Homicide is ... either:
(1) Murder; [or]
(2) Manslaughter;” (emphasis in majority opinion).
Third, it points out “there is no expressed legislative intent to punish a single death under both [murder] and [manslaughter].”
Fourth, it holds that “double homicide convictions for a single death are improper.”
Fifth, it urges “prosecutors [in the future] to charge defendants in cases such as this in alternative counts,” and,
Sixth, it concludes it is not necessary to reverse Wilcox’ conviction, only his sentence on the lesser offense of first-degree manslaughter.
I may need more lessons in logic but words like “disjunctive,” “either,” and “alternative” imply one or the other but not both. We should affirm the murder conviction and sentence, and reverse the manslaughter conviction because there was only one death.