(dissenting).
I dissent because the trial court committed reversible error in ruling that Langdon was not an accomplice as a matter of law. As a matter of fact and as a matter of law, Langdon was an accomplice. Even if we assume that he was not an accomplice as a matter of law, it certainly was a jury question. Both of defendant’s proposed jury instructions 9 and 10 relating to accomplice testimony were proper and should have been given to the jury.
Accomplice instructions must be given when requested against accomplices, whether they be informers, confessed drug dealers, or anyone else engaged in the commission of a crime with the defendant. *339The testimony in this case makes it clear that accomplice instructions were required.
CROSS EXAMINATION OF KEVIN LANGDON
Q. And was that the time that you agreed to form a partnership with Smitty?
A. We had agreed to form a partnership the first day we met as far as selling the marijuana, LSD or any other drugs that they were going to bring in. We were going to get rid of them. Make the money.
Q. So it’s your testimony then that the three of you agreed to go ahead and distribute drugs?
A. Right.
Q. And that no matter which one of you had the drugs, it was a pool—
A. Right.
Q. Is that correct?
A. Yes, sir.
Q. So the drugs were readily accessible to any of them?
A. Right.
Appellant correctly relies upon State v. Dominiack, 334 N.W.2d 51 (S.D.1983), in asserting that according to Langdon’s own testimony he was an accomplice and the court committed reversible error by not giving defendant’s proposed instructions 9 and 10. The following examples illustrate this point:
If a, b and c have a business agreement to sell drugs and anyone of them sells to x, a, b, and c are all accomplices to each other because they are engaged in the commission of a crime. X is not an accomplice to a, b or c. Both of these questions are determined as a matter of law.
If separately and without any business agreement, a sells to b, b sells to c, and c sells to x, neither a, b, c nor x are aecom-plices. This is also a matter of law as opposed to a question for the jury.
If under any of the above examples there is a question as to whether there really was a business agreement or whether they really were engaged together in the commission of a crime, then it is a jury question under proper instructions such as South Dakota Pattern Jury Instructions (Criminal) 1-14-7. If it is an accomplice situation as a matter of law instruction 1-14-7 alternate should be used. If the defendant and the witness were engaged together in the commission of a crime, then SDCL 23A-22-8 provides that 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. The State cannot avoid the force of this statute simply by claiming prosecutorial election1 over which the courts may have no control. In State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (1965), we wrote, “[tjo 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.” That quotation fits Byrum, Smith and Langdon exactly. We don’t have to retreat from our previous decisions, we simply have to return to them. We should do so in this case.
I am authorized to state that Justice Henderson joins in this dissent.
. There is no question that the State has the absolute right of prosecutorial election. That does not mean, however, that the State can sidestep the clear mandate of SDCL 23A-22-8. Nor does the State’s right to prosecutorial election mean that they control or govern the instructions given to the jury. That is the court's duty just as it is the court's duty to interpret the statute which the South Dakota Legislature enacted. SDCL 23A-22-8.