(dissenting).
I dissent. The defendant did not receive a fair trial for all of the following reasons.
1. Accomplice Testimony
The defendant proposed two instructions relating to accomplice testimony, both of which were refused by the trial court. Defendant’s proposed Instruction Number 1 stated the general rule that a conviction of the crime charged cannot be based upon the testimony of an accomplice unless the accomplice is independently corroborated. Defendant’s proposed Instruction Number 6 was the standard instruction which began “You are instructed that the testimony of an accomplice ought to be viewed with distrust.”
SDCL 23A-22-8 provides:
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 corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
Although it has generally been held that a purchaser of illegal drugs is not an accomplice to the crime of selling drugs, State v. Fox, 313 N.W.2d 38, 40 (S.D.1981), the definition of an accomplice, often cited by this court, was given in State v. Johnson, 81 S.D. 600, 606, 139 N.W.2d 232, 236 (1965): “an accomplice is one who is liable to the prosecution for the identical offense charged against the defendant on trial. To render one an accomplice, he must in some manner knowingly and with criminal intent participate in and associate or concur with another in the commission of a crime.” (emphasis added). This court has also cited with approval Gray v. State, 585 P.2d 357, 359 (Okla.Crim.App.1978), which stated: “It is necessary that a charge against that witness could have arisen from the same occurrence as the crime for which the defendant was tried.”
In this case, the witness, Persing, (accomplice and confessed drug dealer), could have been charged with distributing marijuana, with conspiracy to distribute marijuana, with maintaining a house at 448 South Williams for purposes of use or distribution of marijuana, or with possession of marijuana with intent to distribute. If Persing was telling the truth, he was certainly engaged in the commission of a crime with the defendant. Here, there was enough evidence to warrant the accomplice instructions requested by defendant, but instead the trial court ruled as a matter of law, that Persing was not an accomplice. This was a question of fact for the jury and the trial court’s failure to give the request*432ed instructions constitutes reversible error. Johnson, 81 S.D. at 607, 139 N.W.2d at 236; State v. McBride, 296 N.W.2d 551, 554-555 (S.D.1980); Grooms v. State, 320 N.W.2d 149,151 (S.D.1982); State v. Dominiack, 334 N.W.2d 51, 53-54 (S.D.1983).
In Dominiack, supra, this court reversed Dominiack’s conviction, even though an accomplice instruction was given. We concluded that an individual named Miner was an accomplice as a matter of law. 334 N.W.2d at 54. In other words, Miner stood in the position of Persing, and this court found that he was an accomplice as a matter of law. At the very least, a fact question was presented as to whether or not Persing was an accomplice of the defendant and the requested instructions should have been given.
The necessity of viewing the testimony of a confessed drug dealer with distrust is even more evident when one considers that they are “in trouble” with the law, their illegal business is stopped, and they are generally looking for the best possible deal from the State with nothing to sell or trade except testimony.
The State argues that even if Persing was an accomplice, there was sufficient evidence introduced to corroborate his testimony. Defendant argues that there was no evidence, independent of Persing, which connected defendant with Counts I and II charged in the indictment. Evidence which merely raises conjecture or suspicion that the accused is the guilty person is not sufficiently corroborative of the accomplice to warrant convictions. Stanton v. State, 397 So.2d 227 (Ala.Crim.App.1981). Because the corroborative evidence was insufficient, it cannot be said that the trial court’s failure to give the instructions was harmless error.
2. Prior Bad Acts
The State introduced testimony of drug dealer David Dietrich, who testified concerning prior drug purchases from the defendant. None of these prior drug purchases had anything whatsoever to do with any of the charges contained in Counts I, II, or III of the indictment. This evidence was admitted on the basis of showing identity, common scheme, method, or plan. See: SDCL 19-12-5. Defendant argues, however, that allegations about selling marijuana in motels, wrapped in individual one pound bags enclosed in a duffle bag or suitcase and sometimes on credit, does not put an individual’s “signature” on a later alleged sale. See: State v. Houghton,* 272 N.W.2d 788, 792 (S.D.1978). Rufener further argues that this kind of evidence, which is common in distribution cases, does not come close to the standards set forth in Houghton for the admission of “other acts evidence.” 272 N.W.2d at 790-791. This evidence was extremely prejudicial, not only because of the very similarity with alleged prior sales, but because it represented evidence of the defendant acting in conformity with prior unproven acts which is prohibited under SDCL 19-12-5. As stated above, none of this testimony had anything to do with proving that Rufener committed the crimes, with which he was charged, but simply prejudiced the jury against him on the basis of unproven, prior bad acts. The trial court’s failure to invoke the safeguard of SDCL 19-12-3 to protect Rufener from undue prejudice, served to prevent him from receiving a fair trial.
3. More Prior Bad Acts
After defendant’s arrest, his rented vehicle was searched by officers who discovered an illegally concealed .357 magnum *433pistol, a small bag of marijuana, and a marijuana cigarette. Once again, despite the fact that these three items had no real bearing on any one of the three counts as charged in the indictment, they were received in evidence over defendant’s objection. None of this evidence bore any relevancy to the methods allegedly employed by the defendant to distribute marijuana. Likewise, there was no testimony that the defendant ever used a dangerous weapon to promote his alleged distribution of marijuana, and this evidence made him appear to the jury as a violent, dangerous individual.
The State argues that the defendant did not preserve for appeal his objections concerning the gun and the marijuana because the objection was on relevancy, not specifically other bad acts. The defendant in a criminal case would be harmed if defense counsel were required to object “prior bad acts” or something similar, in front of the jury,'even if the trial court sustained the objection. Relevancy is the proper objection under SDCL 19-12-5. The State did not even argue that the pistol and small bag of marijuana were probative of the offense charged. This evidence had no probative value, was clearly prejudicial, and its introduction merits reversal.
4. Impeachment of State’s Own Witness
In its case in chief, the State called the defendant’s girlfriend, Nancy Pierson, to the stand and asked her several incriminating questions about statements she allegedly made to Officer Duane Dahl. The State knew that she would deny having made any such statements. For the trial court to allow the State to question their own witness in this fashion, knowing full well that she would deny having made these statements to Officer Dahl, was improper and highly prejudicial to the defendant’s case. Despite this, the trial court allowed the State to admit the testimony of Duane Dahl who stated that Nancy Pierson told him in 1983, that Rufener was bringing hundreds of pounds of marijuana into South Dakota. The conduct of the State was clearly improper: “The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue ...” People v. Bennett, 393 Mich. 445, 449, 224 N.W.2d 840, 842 (1975).
This evidence should not have been admitted because 1) it was more prejudicial than probative of any facts related to the indictment, and 2) it was improper impeachment of a witness, because it does not satisfy the second requirement set forth in State v. Gage, 302 N.W.2d 793, 798 (S.D. 1981). Neither Gage nor State v. O’Brien, 318 N.W.2d 108 (S.D.1982), involved impeachment of a witness who was called solely to be impeached.
In United States v. Morlang, 531 F.2d 183 (4th Cir.1975), the Fourth Circuit Court of Appeals reversed the defendant’s conviction for conspiracy to bribe the director of West Virginia’s Federal Housing Administration (FHA), in connection with an FHA housing project. The court held, in part, that the trial court erred by admitting a prosecution witness’ prior inconsistent statement which implicated defendant, where the witness was called solely for the purpose of impeaching him. Id. at 189. The court stated:
We must be mindful of the fact that prior unsworn statements of a witness are mere hearsay and are, as such, generally inadmissible as affirmative proof. The introduction of such testimony, even where limited to impeachment, necessarily increases the possibility that a defendant may be convicted on the basis of unsworn evidence, for despite proper instructions to the jury, it is often difficult for them to distinguish between impeachment and substantive evidence.
Id. at 190.
Here, Nancy Pierson’s alleged statements to Officer Dahl were also unsworn. As such, Dahl’s testimony amounted to unreliable hearsay which was highly prejudicial to Rufener’s case. Therefore, the trial court erred in failing to exclude this testimony under SDCL 19-12-3 because its probative value was outweighed by its prej*434udicial effect. According to Louisell and Mueller, 3 Federal Evidence, § 299 (1979), Rule 403 of the Federal Rules of Evidence, (SDCL 19-12-3), not only empowers, but obligates courts to prevent abuse in connection with attempts by a party to impeach his own witness by use of the latter’s prior inconsistent statements.
This was improper use of impeachment evidence; it may have been proper had the defense called Nancy Pierson as a witness, and on direct examination asked her the same questions which the prosecutor had asked in the prosecution’s case in chief. This was not the case, however, and the so called “impeachment testimony” by Duane Dahl was obviously anticipated by the prosecution when they called Nancy Pierson as a witness, especially where she was not found to be a hostile witness. Although the common law rule that a party cannot cross-examine or impeach his own witness has been abandoned by Rule 607 of the Federal Rules of Evidence, (SDCL 19-14-8), “the overwhelming weight of authority is, however, that impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible.” Morlang, 531 F.2d at 190. See also: United States v. Webster, 734 F.2d 1191, 1192 (7th Cir.1984) (“Although Morlang was decided before the Federal Rules of Evidence became effective, the limitation [quoted above] on the prosecutor’s rights under Rule 607 has been accepted in all circuits that have considered the issue.”).
In summary, the State relies upon:
1. the «¿^corroborated testimony of an accomplice, who happens to be a confessed drug dealer,
2. to obtain a conviction from an improperly instructed jury, who has been tainted by:
3. the testimony of prior «¿«¿proven unrelated bad acts and events, some of which come from another “confessed drug dealer” and some from the State’s “own” improperly impeached witness.
5. Prejudicial and Cumulative Effect
Any one of the above four examples is in and of itself sufficient to constitute reversible error. Any one would prevent defendant from having a fair trial. All four of the above examples paint the defendant as a bad actor. They do not prove that the defendant committed the bad acts charged in the three counts of the indictment. Cumulatively, they constituted prejudicial and reversible error and denied defendant a fair trial. State v. Dokken, 385 N.W.2d 493, 494 (S.D.1986).
Overruled on other grounds in State v. Willis, 370 N.W.2d 193, 198 (S.D.1985):
... In Houghton, this Court held that intent was not an element of rape in South Dakota, and therefore, the evidence of other alleged rapes was inadmissible to prove intent. ... When appellant claims innocence, such as he does here, by a mitigating factor, namely, consent, he thus begets the establishment of intent as a material issue in the crime of rape. Therefore, we hold that an admission of ‘other acts evidence’ to prove intent is not contingent on it being a specific element of the crime charged, but is dependent on the establishment of intent as a material issue. Perforce, and deeming that Houghton has been so seriously eroded in the past, we lay to rest its evidentiary holding.