(dissenting).
Rather than reversing and remanding for re-sentencing, I would reverse and remand for a new trial on all charges.
GRAND THEFT COUNTS
Although I agree with the majority’s analysis of the “continuing plan or scheme” principle, I assert that it is misapplied. It is for the jury, and not this Court, to ascertain whether the conduct of defendant amounted to more than one offense.
In State v. Kieffer 17 S.D. 67, 72, 95 N.W. 289, 291 (1903), cited by the majority, we said:
It was for the jury to say, therefore, under the instruction of the court, whether or not the animal which the accused was charged with feloniously taking ... was taken at the same time with the other animals alleged to have been felo-niously taken by him.
The importance of this jury finding was that if the animals were taken at the same time it equaled one offense. Likewise, in this case, if the jury would have found that there was “a continuing impulse, intent, plan, or scheme,” Johnston could only have been convicted on one count. However, under appropriate instructions, they would have an opportunity to find, should the *286evidence permit, that there was no such continuing intent, and thus find him guilty of other thefts. In this case, no such instruction was presented to the jury.
Many of the jurisdictions following the general rule espoused by the majority, expressly recognize that whether the continuous intent, scheme or plan exists is a question for the jury. See Kieffer, supra; People v. Bailey, 55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39 (1961); Woods v. People, 222 Ill. 293, 78 N.E. 607 (1906); State v. Vandewater, 203 Iowa 94, 212 N.W. 339 (1927); Horsey v. State, 225 Md. 80, 169 A.2d 457 (1961); Ex parte Jones, 46 Mont. 122, 126 P. 929 (1912); State v. Sampson, 120 N.H. 251, 413 A.2d 590 (1980); State v. Pedroncelli, 100 N.M. 678, 675 P.2d 127 (1984); State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977); State v. Allen, 59 N.M. 139, 280 P.2d 298 (1955); People v. Robinson, 97 Misc.2d 47, 411 N.Y.S.2d 793 (1978); People v. Hunt, 7 Misc.2d 320, 166 N.Y.S.2d 524 (1957); Barnes v. State, 43 Tex.Crim. 355, 65 S.W. 922 (1901); Cody v. State, 31 Tex.Crim. 183, 20 S.W. 398 (1892); State v. Vining, 2 Wash.App. 802, 472 P.2d 564 (1970) (courts stated this was a question for the jury to determine under a proper instruction). Therefore, we should remand for a new trial with appropriate instructions (in that regard, I agree with the majority’s disposition under its issue I.) COUNTS OF MISUSE OR ALTERATION OF BRAND
I simply cannot agree with the majority’s statement that “violation of the brand registration and use statutes is not a theft.” That is not, in my opinion, necessarily true.
The statute, SDCL 40-19-25, reads as follows:
Any person who, with intent to defraud, brands or marks any cattle, horse, sheep, buffalo or mule, not his own; intentionally brands over a previous brand or in any manner alters, defaces or obliterates a previous brand; or cuts out or obliterates a previous brand on any cat- ■ tie, horse, sheep, buffalo or mule is guilty of a Class 5 felony.
Theft is defined as follows in SDCL 22-30A-1:
Any person who takes, or exercises control over, property of another with intent to deprive him of it, is guilty of theft.
While SDCL 40-19-25 does not specifically categorize the offense as theft, the acts contra to such statute would in many cases amount to theft as defined in SDCL 22-30A-1. A person who takes and re-brands another’s steer, so that it appears to be his own, clearly could violate the theft statute. Does not a cowboy who sneaks into his neighbor’s pasture and re-brands that neighbor’s cattle with his own brand, in reality exercise control with intent to deprive over those cattle (especially knowing the customary ranching practices in this state of returning branded cattle, irrespective of their location, to the owner of the brand)? Any experienced cattleman would surely recognize that in many instances, including the case at bar, re-branding or brand altering constitutes a theft.
Therefore, these counts must be reversed and remanded for retrial with the appropriate instructions, as in the theft cases above.
SUMMARY
I would reverse and remand for a new trial so that the jury may, under the appropriate instructions, ascertain whether Johnston is guilty of a single or multiple counts of grand theft and misuse or alteration of a brand.