(dissenting).
I would reverse on both convictions. The majority’s affirmance of defendant’s accessory conviction incorrectly applies the principle of collateral estoppel with this language: “We cannot say that any of the issues necessary to a conviction on the accessory after the fact to murder charge were necessarily decided in defendant’s favor at the first trial.” (Emphasis added.) Collateral estoppel does not require a showing of prior acquittal before claiming that a subsequent conviction is barred. The majority opinion totally ignores the seminal United States Supreme Court decision on the doctrine of criminal collateral estoppel, which held: “ ‘[wjhere a criminal charge has been adjudicated upon by a court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence. ... In this respect the criminal law is in unison with that which prevails in civil proceedings.’ ” United States v. Oppenheimer, 242 U.S. 85, 88, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916) (citation omitted, emphasis added). Accord, Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Fifth Amendment guarantee against double jeopardy protects against a second prosecution following an acquittal or a conviction and protects against multiple punishments for the same offense). The Oppenheimer principle has never been modified. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), upon which the majority opinion seemingly rests, cites Oppenheimer in support of its statement that collateral estoppel is an established rule of federal law.
Based on the collateral estoppel principles enunciated in Oppenheimer and Ashe, the accessory after the fact to murder issue was adjudicated by defendant’s conviction on the conspiracy charge at his first trial, thus barring his subsequent prosecution on the accessory charge.
The record of the first trial reveals not only the five points listed by the majority, but the following as well.
(1) At closing argument, defendant’s attorney all but admitted defendant was involved after the fact, but he hotly disputed that the State had proved beyond a reasonable doubt that defendant was guilty of conspiracy and murder.
(2) The jury convicted defendant on the conspiracy charge but acquitted him of murder.
The State contends these verdicts were simply inconsistent. That rationale could perhaps be accepted except for the fact that the information charging conspiracy, the evidence presented at trial, and the instruction on conspiracy allowed the jury to convict on the conspiracy charge if they found that the defendant helped Tommy Downs after the murder.
Looking at the elements of the separate offenses there is no likely common issue of ultimate fact between a conspiracy charge and an accessory after the fact charge.1 The acts proving a conspiracy to commit *351murder logically end with the commission of that crime while the acts proving an accessory after the fact to murder reasonably begin only after the homicide in deed becomes a fact. In this case, however, a review of the allegation, the evidence, the instruction, and other relevant matter, to determine how a rational jury grounded its verdict in the first trial, as mandated in Ashe, supra, plainly reveals that the defendant’s acts after the murder were made a major issue in the trial of the conspiracy count. Recognition of this unusual situation is the only rationál explanation for the seemingly inconsistent verdicts at the first trial. Having decided the defendant did not aid and abet in the murder, a rational jury, acting on such allegation, evidence and instruction, could only have grounded its conviction on the conspiracy count on the issue of whether or not the defendant helped Tommy Downs after the murder. This is the same issue that the defendant sought to foreclose at his trial on the accessory count. “One of the purposes of the doctrine of collateral estoppel is to prevent prosecutors from purposefully using their powers to provide plural opportunities to convict an accused. Another is to encourage care in the preparation and presentation of the prosecutor’s initial case in order to prevent relitigation[.]” Wise v. State, 47 Md.App. 656, 425 A.2d 652, 657 (1981) (citing Ashe, 897 U.S. at 445, n. 10, 90 S.Ct. at 1195, n. 10; quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1, 32 (I960)). The record is clear that defendant’s second prosecution disregarded those purposes.
The conspiracy charge extended the time frame beyond the murder. This, plus the introduction of evidence of acts after the murder and the similarity between the accessory instruction and the charge, foreclosed the accessory issue and thus provided a valid defense of collateral estoppel to the subsequent accessory after the fact to murder charge.
I am hereby authorized to state that Justice Morgan joins in this dissent.
. At the time the crime was committed, the statutory definition of conspiracy to commit an offense (SDCL 22-3-8) read:
If two or more persons conspire, either to commit any offense against the state of South Dakota, or to defraud the state of South Dakota, or any county, township, school district or municipal corporation in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned in the state penitentiary for not more than five years, or both.
At the time the crime was committed, the statutory definition of accessory (SDCL 22-3-5) read:
All persons who, after the commission of any felony, conceal or aid the offender with knowledge that he has committed a felony and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories. There are no accessories to misdemeanors.