The facts in this case are substantially the same as those appearing in State v. Smith, S.D., 18 N.W.2d 246, and the same rulings were made in the two cases. Upon authority of that case the judgment appealed from is reversed and the cause remanded for further proceedings.

SMITH, P.J., and ROBERTS and RUDOLPH, JJ., concur.

SICKEL, J., dissents.

POLLEY, J., not sitting.