(concurring in part; dissenting in part).
Holloway was eighteen years old and very drunk when he committed this crime. These two factors are not reasons to excuse taking the life of Aune. Aune, although a proud brawler and fighter by his own recorded diary, introduced in this case, had a right to live. With both men armed with knives and both highly intoxicated, a given conclusion under this record, a volatile situation exploded into one man dying and another man, in effect, sentenced to the State Penitentiary for life.* Holloway also smoked marijuana during the evening.
*312I cannot disagree with the academic discussion of issues one, two, and three. And I concur therein. In the sentencing, however, I dissent. Holloway was sentenced to 146 years to the State Penitentiary: Twenty-five years on the robbery and one hundred twenty-one years on first degree manslaughter. Each sentence was to be served consecutively. Establishing the sentences as “consecutively” was to prevent this 18 year old’s release at any future time.
Here, the sentence is such that this 18 year old man will have a release time at the age of 92. This is an age beyond the normal expectancy of a white male. It is far beyond the life expectancy of a Native American male, whom we refer to as Indians, as do their race. Holloway is a Native American male. I quote from Closing the Gaps in Public Health, the Health Status of Racial and Ethnic Minorities, by James 0. Mason, Director, Centers for Disease Control, Vital Speeches of the Day, Delivered at the Commonwealth Club of California, San Francisco, California, June 27, 1986, page 698:
The pattern of excess deaths among American Indians is striking and tragic. First, they die young; of all American Indians who die before age 70, 54 percent die before they reach 45. Eighty-seven percent of excess deaths in American Indians occur before age 45.
Analysis of the leading causes of these excess deaths presents a powerful indictment of alcohol abuse. American Indian males are six times, and females 11 times, more likely to die of cirrhosis than their white counterparts. And unintentional injuries, a large share of them alcohol-related account for nearly half the total excess deaths.
Effectively, he received a life sentence. Is this sentence “greatly excessive under traditional concepts of justice” or “manifestly disproportionate to the crime or criminal?” United States v. Hollis, 718 F.2d 277 (8th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984).
In my opinion, it is. At the sentencing hearing, page 11 of that transcript, the trial judge stated he was not going to impose a life sentence because of the mitigating factors. Assuming a flat time of 62 years on the manslaughter charge, the 18 year old defendant would be 80 years of age upon his release. Assuming a flat time of 74 years and 6 months on the entire sentence, Holloway will be 92 years of age upon his release date. This amounts to an entire life behind bars. What alternative does this leave for successful correction? What alternative does this leave for rehabilitation? What opportunity does this leave for reformation? The answer is: None. This young man’s life will be over. Only one goal or objective will be served by his sentence: Retribution. Stripped away is our holding in State v. Weiker, 342 N.W.2d 7, 11-12 (S.D.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1422, 79 L.Ed.2d 747 (1984): Rehabilitation is one of the chief goals of the criminal justice system. See also, State v. Weiker, 366 N.W.2d 823, 830 (S.D.1985) (Henderson, J., dissenting).
Mitigating reasons were cited by the trial court as to why it was not imposing the maximum sentence of life imprisonment. Does it not appear that there is an incongruous sentencing on the record? It certainly does to me. Simply put, the sentence does not comport with the intended declarations of the trial court. Essentially, my position is that it must. Furthermore, this trial judge knew or should have known that a 146 year sentence was tantamount to life imprisonment. A sentence must be given reasonable and practical construction. Poor Thunder v. United States, 810 F.2d 817 (8th Cir.1987). Let us examine the sentencing transcript further. It is enlightening as to why this sentencing should be reversed. In reading through the sentencing transcript, the aggravating factor addressed by the trial court was that the trial court believed that Holloway was guilty of felony murder. But the jury held otherwise. Holloway was found not guilty *313of premeditated murder and felony murder on March 6, 1990.
Trial court had no right to sentence Holloway for a crime that the jury found he did not commit. Let us examine the trial court’s rationale and statements during sentencing:
1. “I believe that if I had been on the jury I would have found you guilty of felony murder.” (S.T., p. 10). (Author’s note: Trial court’s gratuitous remark reflects a wrongful role in a jury trial).
2. “My view of the evidence is that you did intend to rob Mr. Auné and that in the course of that robbery you stabbed him.” (S.T., p. 10). (Author's note: Trial court chose to be, in effect, the factfinder).
3. “And so you are guilty of felony murder in my opinion.” (S.T., p. 11). (Emphasis supplied mine). (Trial judge’s role is to instruct the jury on the law applicable to the facts and the jury then determines the facts and applies the law. United States v. White Horse, 807 F.2d 1426 (8th Cir.1986).
4. “In my opinion the jury was lenient in that finding.” (S.T., p. 11).
5. “Even though to some it may be inconsistent for them to find you guilty of robbery and not guilty of felony murder, the jury has the inherent right under our system of justice to do that type of leniency.” (S.T., p. 11).
6. “Jury chose to express what I would call a type of jury nullification by finding you only guilty of first degree manslaughter ...” (S.T., p. 12).
7. “That does not mean, however, that you should not receive a substantial sentence in the penitentiary. Because, as I indicated to you, I think you’re guilty of felony murder.” (S.T., p. 12). (Trial court’s role in jury trial cannot usurp a jury verdict to the contrary).
8. “The robbery case in this case, in my opinion, is a maximum robbery case.” (S.T., p. 12).
As the trial court invaded the province of the jury, this sentence should be reversed and remanded so that the trial court would impose a sentence for the crime committed, rather than for a crime upon which the jury did not find him guilty. In my opinion, the sentence imposed herein is an illegal sentence. It simply does not comport with the verdict of the jury. Under SDCL 23A-31-1 there may be a correction or reduction of the sentence. It expresses: “A court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this sentence for the reduction of sentence.” It goes on to state: “(1) Within one year after the sentence is imposed; (2) Within one hundred twenty days after receipt by the court of a remittitur issues upon affirmance of the judgment or dismissal of the appeal; or (3) Within one hundred twenty days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction; whichever is later.” The sentence herein will haunt this Court; it should not be upheld. If it is upheld, the Circuit Court Judge should examine his words and his intentions and correct this sentence. If this Court affirms this sentence, the Circuit Court Judge has the power to reduce this sentence. This Indian lad has only one felony upon his record. And he has only one life to live. Effectively, his life is taken from him, as the sentence is now constituted. This Justice wrote, on behalf of this Court, State v. Tibbetts, 333 N.W.2d 440 (S.D.1983); it is respectfully suggested that the judiciary, in reviewing this case, consider that case. Therein, the above statute is explained and honored. It should be honored again. Holloway made a Motion to Reconsider, which the trial court denied. His court appointed lawyer asserted that the trial court reconsider its sentencing for the reasons and on the grounds that the Judge’s stated reasons during sentencing about the jury’s conclusions in this case were erroneous. It confounds the mind as to why the trial court decided to impose its own gradations of iniquity.
*314Michael Holloway is entitled to rehabilitate himself, even though he is in prison. Why do we have a state prison? Our state law provides:
SDCL 24-1-1. Penitentiary as general state prison.
The state penitentiary shall be the general prison of this state for the punishment and reformation of offenders wherein such offenders as may be committed thereto, according to law, by any court of this state, shall be confined, employed, and governed in the manner hereinafter provided.
(emphasis supplied mine).
Michael Holloway is a child of God. His body is the temple of his soul; it should not be encased for an entire lifetime because of a drunken act at the age of 18. Surely, he has some goodness in him (openly, he expressed his remorse and regret over the death of Aune); surely, as the years wear on in the State Penitentiary, he has a right to improve himself (reformation is a statutory right!); surely, he must have something to look forward to — hope. Hope that one day he shall see the sun rise again as a free man, justified by his penance, and the compassion of state officials. Our criminal justice system cannot survive on retribution alone. Notice the word “penitentiary.” Where do you suppose that noun has its origin? Obviously, it comes from the word “penitent.” To be “penitent” is “feeling or expressing pain or sorrow for sins or offenses: sincerely affected by a sense of guilt and resolved on amendment of life.” Webster’s Third New International Dictionary 1670 (1976).
The presentence investigation and record reflects Holloway’s deep dependence on the use of alcohol. At the age of 11, Holloway was consuming alcohol regularly. He began consuming alcohol at the age of 4. His immediate family had a history of alcoholism, dating back to his grandparents. There is a suggestion, in this record, that Holloway has a genetic alcoholism syndrome. Holloway’s biological father died when Holloway was too young to know him. He never had, in effect, a Dad to guide him in life’s journey. His stepfather committed suicide, by hanging himself, after testifying in front of the grand jury on September 7, 1989. Shortly after he testified, the stepfather declared he would never testify again. Holloway takes the position that it was because of his actions that his stepfather committed suicide. Holloway declared, post trial, that his stepfather’s suicide almost destroyed him. It should also be mentioned that Holloway began using marijuana at the age of 8 and used it almost on a daily basis. At one time he used cocaine. He became a regular smoker while in the third grade and smoked a pack and one-half a day. The family, such as it was, was poverty stricken. His mother was unemployed. According to the Michigan Alcohol Screening Test, Holloway was an absolute alcoholic. See, SDCL 34-20A-2 through 34-20A-96, concerning South Dakota’s policies on the treatment and prevention of alcohol and drug abuse. Alcoholics, under our state law, must be treated. Our State Legislature, each year, appropriates hundreds of thousands of dollars (some of which filters to the State Penitentiary) to rehabilitate alcoholics. State counselors attempt to reform these alcoholics.
The sentencing hearing, Appeal Transcript (the trial court’s court reporter denominates it such) reveals the following colloquy:
MR. NELSON: We brought this prosecution, Your Honor, and we handled this prosecution in the belief that this is a life case, a life penitentiary case. We urge you to impose that sentence in this case. After everything is said and done this is the ultimate offense. And the taking of a human life by another, in the State’s view, under these facts and circumstances, we believe that our community is entitled to a life sentence in this case. And that is what we urge you to impose.
THE COURT: Mr. Schroeder?
MR. SCHROEDER: Thank you, Your Honor. Your Honor, I urge the Court not to give the maximum sentence in this case. I don’t think it’s a life case. In this case, the jury did consider the two— what I would consider the ultimate charges of murder and found him not *315guilty. I am going to ask the Court to give a term of years in the penitentiary, giving Mike the chance to get out. I think it’s obvious from the PSI and from the comments of the people that knew him and know him that he needs time to mature. He needs time to formulate a plan for his future, to make some decisions about what he wants to do. Hopefully his time in custody will give him the opportunity to do that as well as to better himself. On behalf of Mike I would like to thank the Aúnes for their understanding and their compassion and their feeling. I guess that Mike needs to work out the problems that he’s got, especially the alcohol problems. But I don’t really feel that he needs to be given the maximum sentence in this case. You were made aware through the PSI and through testimony what Mike’s formative years were like. He really had no role models to follow. And alcohol was an everyday thing with his family, beginning at a very early age for him. Obviously, what happened to him as a child is no defense to what he was found guilty of. And it’s no excuse. But I think it certainly sheds some light on how Mike got here and what he needs to work on to improve himself and to handle some of the problems that he’s got. I do believe that he has started to mature some during the pendence of this case and through the course of his trial. As you have been made aware of in the PSI and through the stipulation at trial he suffered the loss of the person that he considered to be his father, although not by law. He had to deal with the feeling that he was partially responsible because of the situation that he put him in and brought Mike before the Court. And as a result I think that has started his maturing process. I think you were able to see Mike during the course of the trial. I think that he showed true remorse for what had happened and that it had a great effect on him. It is true that Mike initially, even by his own admission, said that he thought about just riding it out and see what happened and wait and not worry about it. He did listen to his stepfather and he came forward, not only with himself, but also with the evidence that was used at trial. The prosecution talks about the selective memory and the story and the tesitmony [sic] that he gave. I guess what I would point out to the Court, also, is that there were several days after this happened that if he really wanted to he could have done a lot of different things. Destroying all of that evidence, hiding it, burying it, leaving town. He didn’t do any of that. And he ultimately indicated — listened to his stepfather’s advice and came forward. I think that that shows that Mike does have a conscience. And I think that people that have that kind of a conscience can change in time. Based on all that we’d ask that you do give Mike a term of years in the penitentiary to allow him a chance to get back into society while he is still a relatively young man. The other thing that we would ask, Your Honor, is that whatever sentence you give, if it’s appropriate, that you would deem it to have started on the date that he came forward and was arrested. Thank you.
THE COURT: Mr. Holloway, this is the opportunity that you have to make any statement you’d like to make to the Court.
DEFENDANT HOLLOWAY: Thanks, Your Honor. I’d like to say sorry to the Aune family. I know I put them through a lot of hell. Put my own family through a lot of hell. I don’t think I deserve a life sentence in the penitentiary. Making best use of what I can when I do get up there. They have programs up there for alcohol and drugs. I’m going to try and get a trade. Finish my high school. Try to make it out again and go straight and become a productive person in society. With the State’s help I think I can do that. That’s all I got.
THE COURT: Well, this case is a little bit unusual in one respect. Seldom have I found a family of a victim to be as compassionate as the family of Mr. Aune’s has been. The evidence indicated that Mr. Aune was an outgoing, compassionate, forgiving person. Apparently he got that from his parents because they *316don’t believe that you should receive life imprisonment. And that is unusual. In this case I believe that if I had been on the jury I would have found you guilty of felony murder, which carries a life sentence, mandatory life sentence of life imprisonment. My view of the evidence is that you did intend to rob Mr. Auné and that in the course of that robbery you stabbed him. And those stabs resulted in wounds that resulted in his death. And so you are guilty of felony murder in my opinion. And that crime carries a mandatory sentence of life.
In reviewing this transcript, it is noted that the decedent’s parents did not believe that Holloway should be sentenced to life in prison. Why? The sentencing judge mentioned this as a mitigating factor. However, he paid no heed to this lay supplication. The only aggravating factor I can perceive at the sentencing hearing, was the trial judge’s personal belief that Holloway was guilty of felony murder.
In further reviewing the proceedings below, I was astounded to learn that the jury rendered oral verdicts, not written verdicts. In my opinion, the jury should have been submitted written verdict forms, which should have been signed by the foreperson of the jury, and same should have been recorded and filed. Under this state’s Conduct of Jury Trials, under SDCL 15-14-25, “The verdict must be in writing, signed by the foreman, and must be read by the clerk of the jury, and the inquiry made whether it is their verdict.” Further, SDCL 23A-26-11 pertaining to recording of the verdict (“... the clerk ... must read it to the jurors and inquire of them whether it is their verdict”), combined with SDCL 15-14-26 which concerns itself with polling the jury, by fair implication, suggests that we, in South Dakota, do not have oral verdicts. Certainly, a clerk or a judge cannot read an oral verdict. It is oxymoronic. If the people of this state desire oral verdicts, they may express their point of view to the State Legislature to pass a law to that effect. See, 89 C.J.S. § 493 concerning the general subject of the necessity of reducing a verdict to writing. There, it is expressed: “Whether or not a verdict must be reduced to writing depends on the statutes and practice of the particular jurisdiction.” To repeat: South Dakota law does not provide for oral verdicts. Was the sentence stemming therefrom “illegal” under SDCL 23A-31-1 and Tibbetts, supra? And if not, was the sentencing imposed in an “illegal manner.” In my opinion, the sentence was “greatly excessive under traditional concepts.” And it was “manifestly disproportionate to the criminal.” It was illegally imposed and also imposed in an illegal manner. Holloway was sentenced based upon a personal conviction of the trial judge.
Under SDCL 19-8-1; SDCL 19-10-2; Nose v. Christensen, 409 N.W.2d 131, 132 (S.D.1987); and Gravning v. Zellmer, 291 N.W.2d 751 (S.D.1980), this writer takes judicial notice of the following data pertaining to the possible maximum sentence for the offense of first degree manslaughter in each of the following states:
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Records in a criminal case are as fully before the Court through judicial notice as they would be if introduced in evidence. Alexander v. Solem, 383 N.W.2d 486, 489 (S.D.1986); Gregory v. State, 325 N.W.2d 297, 299 (S.D.1982). SDCL 19-8-1 provides: “Every court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdictions of the United States.” Heretofore, I have set forth facts appearing in the Presentence Investigation. These facts were not admitted in evidence. And said report was not forwarded to this Court on appeal. Only after contacting this Court’s clerk, who contacted the Minnehaha County clerk, was the investigation found. It was in the Court Services office (not in the official file), whereupon the two aforesaid clerks had it filed in the appeal file. I now take judicial notice of those facts to further the best interests of justice. As it is important to one of my positions heretofore expressed, the following are what I consider to be the relevant statutes regarding pre-sentence reports. It is not an exhaustive listing of statutes and rules. Important passages exist, relating to “a rehabilitative program” and “correctional treatment” for “the defendant.” This would include Mi*318chael Holloway. God doesn’t make junk; men make other men into junk. If man has done this, man should rectify his misdeeds. The statutes and rules:
23A-27-10. (Rule 32(c)(3)(D)) Return of presentence report to court services officer — Filing with board of pardons and paroles and penitentiary — Use of information upon written order of judge. Any presentence investigation report made available to a defendant or his counsel and the prosecuting attorney shall be returned to the court services officer immediately following the imposition of sentence or the granting of probation. When a person is sentenced to the penitentiary, a copy of his presentence report shall be filed with the board of pardons and paroles and the penitentiary. Penitentiary officials and the board of pardons and paroles may utilize information contained in the report, including any pre-plea report being used as the presentence investigation report, for the development of a rehabilitation program for the individual. However, the contents of the reports may not be disclosed to the individual without a written order from the sentencing judge or his successor, (emphasis supplied mine).
23A-27-5. (Rule 32(c)(1)) Pre-sen-tence investigation and report — Contents not disclosed unless defendant convicted. A presentence investigation may be ordered in the discretion of a court. The court service officer of a court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.
The report shall not be submitted to a court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.
23A-27-6. (Rule 32(c)(2)) Contents of report of presentence investigation. The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court, (emphasis supplied mine).
23A-27-8. (Rule 32(c)(3)(B)) Summary given to defendant in lieu of presentence report — Comments received. If a court is of the view that there is information in a presentence report which should not be disclosed under § 23A-27-7, the court in lieu of making the report or part thereof available shall state orally or in writing a summary of the factual information contained therein to be relied on in determining sentence, and shall give the defendant, his counsel, or the prosecuting attorney an opportunity to comment thereon. The statement may be made to the parties in chambers.
The trial judge did not refer to the pre-sentence report, when sentencing Holloway, except at the beginning when he expressed that “a pre-sentence investigation was ordered by the Court and that pre-sentence investigation has been completed.” One key comment, at sentencing, he did make: “While you did not immediately come forward, your coming forward with a sack full of evidence is evidence that there is hope for you.” (Sentencing Transcript at 11) (emphasis supplied mine).
It is obvious the maximum possible sentence in each of the other states is below the penalty assessed against Holloway. In fact, the state with the highest maximum other than South Dakota is Montana with a maximum of 40 years. The Montana maximum is 81 years less than the sentence the Defendant received. Therefore, the sentence “shocks the conscience,” and is totally disproportionate based upon the gravity of the offense, and importantly, the sentences imposed upon other criminals or the *319maximum allowed for the same offense in other jurisdictions.
This Court must not eschew the goals of rehabilitation. State v. Weiker, 342 N.W.2d at 11. But that is exactly what it accomplishes by affirming this sentence. One of the criteria to use in determining proportionality is the “... sentences imposed for the commission of the same offense in other jurisdictions.” State v. Weiker, 366 N.W.2d at 825. Therefore, it would appear that the trial court must consider the possible maximum of other jurisdictions in first making its threshold determination.
In State v. Bad Heart Bull, 257 N.W.2d 715 (S.D.1977), we expressed:
Generally, the state and federal constitutional provisions barring cruel and unusual punishments refer to the character, such as barbaric penalties involving physical torture, rather than the duration of punishment. See 21 Am.Jur.2d, Criminal Law, Section 612. Although punishment by imprisonment is not per se cruel and unusual it may be constitutionally offensive when the duration of the sentence prescribed is so excessive or disproportionate to the crime committed as to shock “the conscience and reason of men generally.” State v. Becker (1892) 3 S.D. 29, 40, 51 N.W. 1018, 1022.
Id. at 720.
This entire scenario, comprised of drunkenness by both participants in a fight in an alley in Sioux Falls (both with knives), the background of this young Indian male, the remorse of this appellant, the production of the evidence against himself, the length of the sentence, the victim’s parents expressing that they did not want Holloway put away for life, sentencing Holloway on the personal belief that Holloway was guilty of felony murder rather than first degree manslaughter, the victim’s diary reflecting his past physical encounters reflect a constitutionally offensive sentence. It shocks “the conscience and reason of men generally.”
In Solem v. Helm, 103 S.Ct. at 3009 n. 16, the United States Supreme Court expressed, inter alia, “rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits.” Therefore, the statutory limits, in isolation, is not the determining factor. In 1215, three chapters of the Magna Carta were devoted to the rule that “amercements” could not be excessive. Whereof, did our forefathers demand that punishment not be unjust or cruel. The Eighth Amendment to the United States Constitution inherits this belief for all Americans.
In State v. Antelope, 304 N.W.2d 115, 117 (S.D.1981), we reannounced that which I have depicted above. But added a little wrinkle which needs mentioning. We expressed, inter alia, “Upon review of the facts of this case, we hold that appellant’s sentence, while severe, is not so cruel and unusual as shock the conscience of the Court.” (emphasis supplied mine). Under either theory, be it of men generally, or this Court, we should be shocked at the procedures below, the sentence imposed upon “this criminal,” and reverse for a resentencing and in so doing, vacate the entire sentence below.
Counsel below, in a Motion to Reconsider, expressed to the Court that his decision on sentencing was “erroneous.” In my opinion, under the authorities above, counsel has protected the record. Assuming arguendo, that such is not the case, this writer relies upon the plain error rule under State v. Brammer, 304 N.W.2d 111 (S.D.1981) as this is an exceptional circumstance where a litigant’s rights are substantially affected. See also, SDCL 23A-44-15; SDCL 19-9-6.
Long after my service on this Court, long after the race is run by this Justice, Holloway, under the trial court’s and appellate court’s decisions, shall be in South Dakota’s penal system. Wouldst, I pray, that some Board, Court, or Governor heed some of the authorities, words, and spirit encompassed herein, like, hopefully, “apples of gold in settings of silver.” Proverbs 25:11. Then, perhaps, with penance and rehabilitation, this Indian lad, as an Indian man, *320shall breathe the air of freedom. And a life shall not be wasted.
Per the state’s expressions in its brief, Holloway "has a significant history of alcohol abuse dating from the time he was a child" and Aune “also had a considerable alcohol abuse history.” In Shakespeare, Othello Il.iii, it is written by the Bard of Avon “0 God, that men should put an enemy in their mouths to steal away their brains." Brother, brother, how many brains *312attended the scene on the dark and lonely streets of Sioux Falls, that night, after the bars closed, as defendant wended his way homeward to an uncle’s house?