23A-26-1      (Rule 31(a)) Unanimous verdict required--Return in open court.
23A-26-2      (Rule 31(b)) Return of verdict as to one of two or more defendants--Retrial of defendants as to whom verdict not reached.
23A-26-3      General verdict required--Special verdict permitted.
23A-26-4      Form of general verdict on not guilty plea.
23A-26-5      Form of verdict acquitting for insanity.
23A-26-6      Direction to reconsider improper verdict.
23A-26-7      Verdict as to degree of crime--Lowest degree found on reasonable doubt.
23A-26-8      (Rule 31(c)) Conviction of included offense or attempt.
23A-26-9      Appearance of defendant--When required for verdict.
23A-26-10      (Rule 31(d)) Polling of jury after verdict returned--Further deliberation or discharge if not unanimous.
23A-26-11      Recording of verdict--Inquiry of jury.
23A-26-12      Remand to custody on verdict of guilty or guilty but mentally ill--Commitment hearing on acquittal for insanity.
23A-26-12.1      Mental examination and report before hearing.
23A-26-12.2      Hearing.
23A-26-12.3      Burden of proof.
23A-26-12.4      Commitment--Duration.
23A-26-12.5      Release--Procedure--Compliance with prescribed regimen as condition.
23A-26-12.6      Failure to comply with regimen--Notice--Arrest--Court determination.
23A-26-13      (Rule 31(e)) Reserved.
23A-26-14      Guilty but mentally ill verdict--Required findings.

23A-26-1. (Rule 31(a)) Unanimous verdict required--Return in open court.

A jury verdict shall be unanimous. It shall be returned by the jury to the judge or magistrate in open court. When the jurors appear, they must be asked by the court or the clerk whether they have agreed upon their verdict. If the foreman answers in the affirmative, they must, on being required, declare the same.

Source: SDC 1939 & Supp 1960, § 34.3660; SDCL, § 23-45-8; SL 1978, ch 178, § 320.

23A-26-2. (Rule 31(b)) Return of verdict as to one of two or more defendants--Retrial of defendants as to whom verdict not reached.

If there are two or more defendants, a jury at any time during its deliberation may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed. If a jury cannot agree with respect to all, the defendant or defendants as to whom it does not agree may be tried again.

Source: SDC 1939 & Supp 1960, § 34.3670; SDCL, § 23-45-24; SL 1978, ch 178, § 326.

23A-26-3. General verdict required--Special verdict permitted.

Except as provided in this section, jurors shall render a general verdict. Special verdicts are hereby abolished, except the verdicts of "guilty but mentally ill" and "not guilty by reason of insanity."

Source: Supreme Court Rule 405, 1939; SDC 1939 & Supp 1960, § 34.3661; SDCL, § 23-45-9; SL 1978, ch 178, § 321; SL 1983, ch 174, § 14.

23A-26-4. Form of general verdict on not guilty plea.

A general verdict on a plea of not guilty is either "guilty" or "not guilty" which imports a conviction or acquittal of the offense charged.

Source: Supreme Court Rule 406, 1939; SDC 1939 & Supp 1960, § 34.3662; SDCL, § 23-45-10; SL 1978, ch 178, § 322.

23A-26-5. Form of verdict acquitting for insanity.

If a defendant is acquitted because he was insane when he committed the offense charged, the verdict shall be "not guilty by reason of insanity."

Source: Supreme Court Rule 406, 1939; SDC 1939 & Supp 1960, § 34.3662; SDCL, § 23-45-12; SL 1978, ch 178, § 323; SL 1983, ch 174, § 15.

23A-26-6. Direction to reconsider improper verdict.

If a jury renders a verdict which is not a general verdict in accordance with § 23A-26-4 or 23A-26-5, a court may, with proper instructions as to the law, direct the jury to reconsider it.

Source: SDC 1939 & Supp 1960, § 34.3667; SDCL, § 23-45-18; SL 1978, ch 178, § 324.

23A-26-7. Verdict as to degree of crime--Lowest degree found on reasonable doubt.

Whenever a crime is distinguished by degrees, a jury, if it convicts an accused, shall find the degree of the crime of which he is guilty and include that finding in its verdict. When there is a reasonable ground of doubt as to which of two or more degrees an accused is guilty, he can be convicted of only the lowest degree.

Source: SDC 1939, § 13.0104; SDC 1939 & Supp 1960, §§ 34.3635, 34.3671; SDCL, §§ 23-44-6, 23-45-22; SL 1978, ch 178, § 325.

23A-26-8. (Rule 31(c)) Conviction of included offense or attempt.

A defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if such attempt is an offense.

Source: SDC 1939 & Supp 1960, § 34.3669; SDCL, § 23-45-23; SL 1978, ch 178, § 327.

23A-26-9. Appearance of defendant--When required for verdict.

If an indictment or information is for a felony, the defendant must, before the verdict is received, appear in person. If it is for a misdemeanor, the verdict may, in the discretion of the court, be rendered in his absence. In any case, if a defendant flees the jurisdiction of a court, the verdict may be returned in his absence.

Source: SDC 1939 & Supp 1960, § 34.3660; SDCL, § 23-45-7; SL 1978, ch 178, § 320.

23A-26-10. (Rule 31(d)) Polling of jury after verdict returned--Further deliberation or discharge if not unanimous.

After a verdict is returned but before it is recorded, the jury shall be polled at the request of any party or upon the court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.

Source: SDC 1939 & Supp 1960, § 34.3673; SDCL, § 23-45-25; SL 1978, ch 178, § 328.

23A-26-11. Recording of verdict--Inquiry of jury.

When a verdict is given which a court may receive, the clerk must promptly record it in full in the minutes, and must read it to the jurors and inquire of them whether it is their verdict. If any juror disagrees, the fact must be entered in the minutes and the jury must again be sent out. If no disagreement is expressed, the verdict is complete and the jury must be discharged from the case.

Source: SDC 1939 & Supp 1960, § 34.3674; SDCL, § 23-45-26; SL 1978, ch 178, § 329.

23A-26-12. Remand to custody on verdict of guilty or guilty but mentally ill--Commitment hearing on acquittal for insanity.

If a verdict of guilty or "guilty but mentally ill" is returned against the defendant, he shall be remanded, if in custody, to the proper officer of the county to await the judgment of the court upon the verdict. When the jury has returned a verdict acquitting the defendant upon the ground of insanity, the court shall order that the defendant be committed to the human services center until such time as he is eligible for release pursuant to § 23A-26-12.5.

Source: SDC 1939 & Supp 1960, §§ 13.0605, 34.3676; SDCL, §§ 23-45-21, 23-48-2; SL 1978, ch 178, § 330; SL 1983, ch 174, § 17; SL 1985, ch 192, § 12.

23A-26-12.1. Mental examination and report before hearing.

Prior to the date of hearing, pursuant to § 23A-26-12.2, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to §§ 23A-46-1 and 23A-46-2.

Source: SL 1985, ch 192, § 13.

23A-26-12.2. Hearing.

A hearing shall be conducted pursuant to the provisions of § 23A-46-3, and shall take place not later than forty days following the special verdict.

Source: SL 1985, ch 192, § 14.

23A-26-12.3. Burden of proof.

In a hearing pursuant to § 23A-26-12.2, a person found not guilty only by reason of insanity of an offense involving bodily injury to, or serious damage to the property of, another person, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental illness or defect. With respect to any other offense, the person has the burden of such proof by a preponderance of the evidence.

Source: SL 1985, ch 192, § 15.

23A-26-12.4. Commitment--Duration.

If, after the hearing, the court fails to find by the standard specified in § 23A-26-12.3 that the person's release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect, the court shall order that the defendant be committed to the human services center for treatment until the person's mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would not create a substantial risk of bodily injury to another person or serious damage to property of another.

Source: SL 1985, ch 192, § 16.

23A-26-12.5. Release--Procedure--Compliance with prescribed regimen as condition.

When the administrator of the Human Services Center determines that the person has recovered from his mental disease or defect to such an extent that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment, would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment. The clerk shall send a copy of the certificate to the person's counsel and to the prosecuting attorney. The court shall order the discharge of the acquitted person, or, on the motion of the prosecuting attorney or on its own motion, shall hold a hearing, conducted pursuant to the provisions of § 23A-46-3, to determine whether he should be released. If, after the hearing, the court finds by the standards specified in § 23A-26-12.3 that the person has recovered from his mental disease or defect to such an extent that:

(1)    His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or

(2)    His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would not create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall:

(a)    Order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the administrator of the Human Services Center and that has been found by the court to be appropriate; and

(b)    Order, as an explicit condition of release, that he comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment.

The court at any time may, after hearing, employing the same criteria, modify or eliminate the regimen of medical, psychiatric, or psychological care or treatment.

Source: SL 1985, ch 192, § 17.

23A-26-12.6. Failure to comply with regimen--Notice--Arrest--Court determination.

The director of a medical facility responsible for administering the regimen imposed on an acquitted person conditionally discharged under § 23A-26-12.5 shall notify the prosecuting attorney and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.

Source: SL 1985, ch 192, § 18.