(concurring).
At first blush, it appeared that this prosecution for these felonies was overzealous. I was troubled and could not figure out whether the prosecution arose out of misinterpretation of the two statutes, namely SDCL 32-4-16 (felony statute) and SDCL 32-5-27 (misdemeanor statute). See Nelson v. School Bd. of Hill City, 459 N.W.2d 451 (S.D.1990) (the resolution is solely a question of which of two statutes is applicable, hence, a question of law). Perhaps, the thought crossed my mind, the felony charges arose out of Inspector Hilgeman’s ambition to be tough when he remarked, according to Mr. Martin’s sworn testimony, that he “was out to get French.”
This entire investigation began because of a suspicion of spinning odometers. Apparently, the inspector believed that Terry Brown, the dealer from Nebraska, was the individual spinning the odometers (not French). Cooperating with the authorities, French turned over his records, pertaining to Brown, unto one Ron Ryzavy, a dealer inspector for the State of South Dakota. Hilgeman then entered the picture and a conflict arose between French and Hilgeman. Some of this conflict arose because French’s records were not promptly returned to him.
Perspective is often attended by further reading and reflection. Often, it is spawned by a dramatic event. Saul, as an example, had a change in perspective when struck down to earth as a light in heaven flashed around him. Acts 9:3-6. Perspective evolves by different manifestations. Here, as I continued to ponder, I was struck with the thought that a danger would exist for the general public by a dealer’s failure to strictly abide by Form 39 (not dramatic, you see). *698Circuit Judge Bradshaw was apparently taken up with the same concern.
"When French and his Nebraska counterpart traded vehicles, the exchange was not always immediate. French might trade a car today "with the understanding that an equal car would eventually arrive. In modern day sports jargon, French traded for “a car to be named at a later date.” However, he did not file the proper paperwork, Form 39, until after both dealers had exchanged automobiles. Thus, the final trade date sometimes occurred after French had already sold or transferred the car he had previously received, to someone else. This is the onset of danger to the citizens of our state. French’s method leaves an imperfection on the chain of title.
Plainly written on Form 39 is this requirement: “To be attached immediately to Foreign (Out of State) Title and surrendered by purchaser to County Treasurer upon applying for Title and License.” Thus, the information is important in the chain of title and provides information for the State and consumer/purchaser. French’s alleged trading system, even in its most honest form, creates a gap in title and allows the dishonest to circumvent the law — a law designed to protect consumers. Used automobile dealers, when receiving a trade, act as consumers or are, at least, in privity with the ultimate consumer.
Additionally, SDCL 32-4-16 includes the “accuracy of information supplied in connection with the registration and ... titling of a vehicle[.]” Thus, the chain of possession is very important and Form 39 aids state officials in protecting consumers. Form 39 is supplied for the above reasons. See In re Pam Oil, Inc., 459 N.W.2d 251 (S.D.1990); Sales Tax Liability of Valley Queen Cheese, 387 N.W.2d 39 (S.D.1986). Simply put, French’s actions allow for abuse.
Essentially, my position is that if consumer protection is the goal, then the false information given by French is prohibited by SDCL 32-4^-16 (felony statute) and that specific statute should be strictly enforced.
T’would not hurt the cause of statutory definition were the Executive Board of the Legislative Research Council (birthed to write understandable legislation) to draw a more distinctive line in these two statutes. Finally, under SDCL 19-10-2,1 take judicial notice of SDCL 22-1-1 which provides:
The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.