(dissenting).
I cannot join this decision. It relies upon past decisions wherein I have dissented. It reaches a result contrary to my common sense and experience. Most of all, I dissent because this defendant was denied a fair trial. It is true that the defendant is not entitled to a perfect trial, but he is entitled to a fair trial. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). It appears to me that the bad acts evidence was quite prejudicial. My many dissents on the bad acts evidence rule have been in vain but this does not mean that they have been wrong. See State v. Chief Eagle, 377 N.W.2d 141, 147 (S.D.1985) (Henderson, J., dissenting); and State v. Wedemann, 339 N.W.2d 112, 116 (S.D.1983) (Henderson, J., dissenting). Here, Dietrich’s testimony about prior purchases — prior bad acts — does not demonstrate a common scheme, method, or plan which is individually attributable to the defendant. On the contrary, this testimony only relates aspects which are common to nearly all bulk drug distributions, i.e., one pound bags, devices with which to transport, and points of rendezvous. In my opinion, the trial court abused its discretion in admitting evidence of prior unproven acts.
Furthermore, there was an intentional improper impeachment of a witness herein. The State called Nancy Pierson and inquired about her prior conversations with Agent Dahl. When the State did not receive the desired answers, however, it called Agent Dahl to testify to such conversations so as to impeach Pierson and gain admission of otherwise inadmissible evidence. In State v. Gage, 302 N.W.2d 793 (S.D.1981), we condemned such tactics. Here, too, I would not condone the admission of such testimony, for the inconsistency did not relate to a matter of sufficient relevancy that the State’s case would be adversely affected if the inconsistent testimony of Pierson was allowed to stand. Gage.
As regards further evidentiary error, Detective Blades’ testimony about a .357 magnum pistol, a small bag of marijuana, and a marijuana cigarette, was objected to upon the basis of relevancy.* Relevancy is the proper objection under SDCL 19-12-5. When ruling upon the admission of other crimes, wrongs, or acts, the trial court must first determine its relevance. State *430v. Means, 363 N.W.2d 565 (S.D.1985). So, pray, why is an objection on the basis of relevancy an incorrect objection? Once relevancy is determined, it behooves the trial court to determine if the probative value is outweighed by the danger of unfair prejudice. Id. Then, this Court determines if there has been an abuse of discretion in the balancing function of the trial court. Note that this general concept is not treated in the majority opinion and the all-sweeping phraseology of the Rose citation is used to achieve a favorable outcome for the State. If the majority opinion is holding that a defense lawyer has to object upon the basis, stated as follows: “Your Honor, I object upon the basis that this is improper prior bad acts testimony,” the majority opinion is compounding the unfavorable exposure of a defendant before a jury. It is my understanding from this record that the State of South Dakota did not argue that the pistol, the small bag of marijuana, and the marijuana cigarette were probative evidence as related to the offenses charged. Pray then, why did the State seek to introduce it? It is obvious. It was introduced to persuade by illegitimate means and prejudiced the jury against the defendant.
Finally, this Court has eroded, if not eliminated, in past decisions, all semblance of a right to sever charges in a jury case. See this author’s dissent in State v. Maves, 358 N.W.2d 805, 811 (S.D.1984) (Henderson, J., dissenting). Obviously, the joinder of all three counts for trial exacerbated the bad acts evidence. Separate counts of the indictment each involved separate transactions; thus, the jury was able to ponder that the defendant must have committed all three crimes simply by an assumption that if he committed any one of the crimes, he probably committed the other two. A cautionary instruction is a nicety on paper. It theoretically cleaves. It does not, however, erase by last-minute laundering the tremendous influence of an improper joinder. Quae non valeant singula juncta juvant. Lat. Things which do not avail when separate, when joined avail. The assertion of separate defenses is recognized as a valid basis for severing trials. See 2 W. LaFave & J. Israel, Criminal Procedure, § 17.1(c), at 355-56 (1984). Defendant, at least on paper, had a verifiable alibi with respect to count three, that at “approximately 9:00 a.m. [on the date of the alleged third transaction], defendant was at his place of residence, the address being Box 282, Rural Route 2, Sioux Falls, South Dakota” and defendant then included the names of two witnesses. Defendant filed this two months before the hearing on pretrial motions. As one reads over the judgments of conviction in this case, it is noted that the defendant was sentenced to six years on each count and for “separate transactions.” Trying counts one and two with count three unquestionably prejudiced the defendant on count three.
It is assumed that we have rules of evidence to obtain a quality of proof. Law is created by a written, accepted body of rules which guide society. Justice, on the other hand, is that which is morally right— that which appeals to the conscience. Justice, then, in its broad sense, becomes a subjective determination. Justice is seen in the eyes of the beholder. Law, on the other hand, is objective. We observe it as being written, legislated, and codified. Or decided.
Justice Oliver Wendell Holmes believed most strongly in law; i.e., an accepted body of rules. Surely, evidence is a body of law with an accepted body of rules. If a defendant is denied his evidentiary rights, which have been developed to bring forth the truth, he is being denied the Law. When this reaches prejudicial error, it has denied an accused a fair trial. A perfect illustration of my remarks is exemplified by the recent holding in State v. Dokken, 385 N.W.2d 493 (S.D.1986). See also, State v. Remacle, 386 N.W.2d 38, 40 (S.D.1986) (Henderson, J., specially concurring). In Dokken, which I specially joined, we reversed a first-degree manslaughter conviction, as the rules of evidence were violated to a great extent. Dokken adopted Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which I relied heavily upon in my dissent in Chief Eagle. *431Note that the author of this opinion is the same author as the Chief Eagle opinion. Thus, the section in the majority opinion pertaining to harmless error is déjá vu per Chief Eagle. Here, the State again prevails with the prosecutor’s friend, harmless error.
Judge Learned Hand told the story of being with Justice Holmes as follows:
It was a Saturday when the [United States Supreme Court] was to confer. It was before he had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off I said to him, “Well, sir, goodbye. Do Justice!” He turned quite sharply and he said, “Come here. Come here.” I answered, “Oh, I know, I know.” He replied, “That is not my job. My job is to play the game according to the rules.” I have never forgotten that. I have tried to follow, though often times I found that I didn’t know what the rules were.
R. Aldisert, The Judicial Process at 185 (1976).
The great Holmes, of course, meant that justice was to be achieved by application of objective legal rules. There can be no doubt that to accomplish justice, we lawyers must do it within a framework of objective legal rules.- This includes observing and applying the rules of evidence. In this case, it strikes me that this was not accomplished and I therefore respectfully dissent.
There was no testimony that defendant ever used this weapon to promote distribution of marijuana. Clearly, this evidence was introduced to portray that defendant was a dangerous individual. It was not relevant.