(dissenting).
I dissent.
1. Improper Indictment
Burton Eagle Hawk and Mary Ann Spirit Track were improperly indicted for abuse of a minor. The indictment provided:
That between July 1, 1985 and January 23, 1986, ... [defendants] ... did individually and conjointly, abuse and torment Lionel ... Melinda ... and Burton ... minors, in a manner which did not constitute aggravated assault, ... [in] ... [t]hat they failed to furnish proper parental care and medical assistance resulting in the minors suffering great pain, physical and mental, from diseases and injuries, in violation of SDCL 26 — 10—1[.]
The Tripp County state’s attorney improperly equated abuse with neglect. This error resulted in the improper grand jury indictment. This error further resulted in improper jury instructions equating abuse with neglect and in the majority opinion which affirms that error.
In my view the majority opinion is not able to see the difference between abuse and neglect because of the “damning nature” of the results of the neglect. There *127is no evidence of abuse in this record; there is no evidence of torment in this record, there is simply evidence of “[o]pen sores on their bodies, pus draining from eyes, purulent ear canals, scalps marked by sores and contaminated with lice, evulsion of fingernails and a toenail ... requiring] hospitalization.” Every disease and sore enumerated by the majority opinion is proof of neglect — not abuse. Neglect, even severe neglect, does not constitute abuse or torment under this statute, no matter how many times the majority opinion says it does.
The state’s attorney improperly charged the defendants with a felony on misdemeanor proof. This is clearly improper and should be reversed.
As stated in the majority opinion, in 1977, SDCL 26-10-1 originally provided:
It shall be a Class 1 misdemeanor for any person intentionally, negligently, or unnecessarily to expose, torture, torment, cruelly punish, or intentionally neglect any child under eighteen years of age or deprive such child of necessary food, clothing, shelter, or medical attendance.
If this statute were still in existence today the defendants could have been convicted of a violation which was a Class 1 misdemeanor. However, in 1977, SDCL 26-10-1 was changed to provide for a felony:
Any person who abuses, exposes, tortures, torments or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony.
In addition, the misdemeanor statute, SDCL 25-7-16, provides in part:
A parent of a minor child who intentionally omits without lawful excuse to furnish necessary food, clothing, shelter, medical attendance or other remedial care or other means of support for his child is guilty of a Class 1 misdemeanor.
A fair reading of these statutes makes it clear that under present South Dakota law neglect, even severe neglect, does not constitute abuse or torment.
Even more important, in this case the indictment charged the defendants with a Class 4 felony based on language taken from the Class 1 misdemeanor statute, SDCL 25-7-16. Failure to furnish proper parental care and medical assistance is a violation of SDCL 25-7-16, a misdemeanor, not of SDCL 26-10-1, a felony.
It is obvious that the South Dakota Legislature knew what it was doing when it provided intentional abuse, torment, etc. to be a felony and intentional omissions to furnish food, clothing, medical attention a misdemeanor. Even if that were not the case, there is no showing here that the defendants ever intentionally did anything. There is no showing that defendants were awake, conscious, or sober enough to form any intent. An omission or neglect can be the result of alcohol problems, as in this case, rather than the result of a criminal act.
2. Improper Focus and Jury Instructions
The majority opinion appears to adopt the State’s argument that at some factually determinable point parental neglect must become cruelty or abuse of a minor, and submits that it was obvious to the majority (and to the jury) that the parents’ treatment of the children was cruel, inhumane, conducive to injury, and recurringly painful. I do not think the majority opinion can blame this case on the jury when the state’s attorney improperly indicted the defendants and the trial court improperly instructed them. It is not enough to say that the parents’ conduct was abusive under the standards developed by the trial court, especially when the standards developed by the trial court were clearly in error.
The following language of the majority opinion pin points the fatal defect in their reasoning.
What, pray tell, we ask, is the difference to the child be he afflicted by acts of commission or omission if, in the end, his body is racked with distress, agony, and torment? We perceive none.
The state’s attorney, the trial court, and now the majority opinion all have the wrong focus. Their focus was on the body racked with distress, agony, and torment. In determining a violation of a criminal statute, such as SDCL 26-10-1, the focus is supposed to be whether the intent and conduct of the defendant constitutes a viola*128tion under the statute. The focus should be on the conduct of the defendant, not on the final medical condition of the alleged victims. Accordingly, the current felony statute simply does not include cases of neglect, not even severe neglect. There is no proof of intentional acts. This statute simply cannot mean what the State argues it means in view of the prior statute and the present amendment. All of the cases generally distinguish abuse (intentional) from neglect (negligent) and if they do not, they should. Jury Instruction No. 5 which provides in part that “abuse” 'means every act or omission or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted,' ” and “torment” ‘means the causing of severe suffering of body or mind’ ” was clearly improper and the parents were prejudiced thereby. Therefore, the indictment was improper and the trial court’s instruction that abuse equaled neglect constituted reversible error.
The extent to which the majority opinion strains to reach its preconceived result affirming the trial court is also evident in its selective use of the dictionary definitions for abuse, torment, cruel, and cruelty. In the first place, neither cruel nor cruelty are involved because they were not used in the indictment. In defining “torment” the majority opinion leaves out the first definition which is “the infliction of torture (as by rack or wheel).” A fair reading of the statutes and the definitions of “abuse” and “torment” substantially support the dissent and not the majority opinion. At any rate, by no stretch of the imagination, or strained interpretation of any dictionary definitions did the defendants in this case inflict torture (as by rack or wheel). There is no showing that the defendants intended anything, much less torture.
3. Prior Bad Acts
In its effort to sustain the convictions, the majority opinion impliedly condones the State’s use, through cross-examination, of prior bad acts of (1) overdosing on drugs while pregnant, and (2) attempted fraudulent attainment of welfare benefits. The majority opinion gives lip service to SDCL 19-12-5 for the proposition that evidence of other bad acts is inadmissible and then goes on to approve the admission of “Mother’s admission that she attempted to fraudulently obtain welfare benefits [because it was] ‘probative of [her] truthfulness or untruthfulness’ as intended by SDCL 19-14-10.” This testimony is so prejudicial that it would be absolutely impossible to balance the “probative value against its prejudicial effect.”
The majority opinion acknowledges that it is firmly convinced that the circuit court erred in admitting evidence, solicited through cross-examination of mother, concerning her drug overdose while pregnant. After noting that the circuit court failed to balance the probative value of this evidence against its prejudicial effect, the majority notes their “certainty that the circuit court judge would have disallowed this evidence as its probative value is substantially overcome by its prejudicial effect.”
The majority opinion then says: “Despite our ruling that this evidence was improperly admitted, we do not reverse the circuit court, as its error was harmless and not prejudicial to Mother’s substantial rights.” The majority opinion is attempting to overrule State v. Dokken, 385 N.W.2d 493 (S.D.1986) and State v. Rufener, 392 N.W.2d 424 (S.D.1986) without even mentioning the names of the cases.
4. Conclusion
The children were neglected, even severely neglected. The neglect resulted in serious illnesses and diseases. The children were removed from their surroundings and found to be dependent and neglected, which was proper. The parental rights of the defendants to the children were terminated, which was also proper. The defendants were indicted, convicted, and sentenced for felonies instead of misdemeanors, which was clearly improper. We should reverse and remand for retrial on proper misdemeanor charges.
I am authorized to state that . MORGAN, J., joins in this dissent.