(concurring in part; dissenting in part).
Although I join the majority opinion on issue one (Hess was competent to testify) and issue three (Warren committed exploitation of a disabled adult), I cannot agree on issue two (that the convictions of grand theft by transfer are to be reversed).
To the contrary, I would uphold the jury verdicts of grand theft by transfer for the reason that the jury heard all of the testimony and was convinced that these crimes were committed against this aged, in-firmed, and helpless old man and that Judge Tschetter properly submitted the case to the jury on grand theft by transfer. There is absolutely no error of law below which justifies setting aside these convictions. Myria Warren is guilty, under the law, and also under the facts.
There are seven paragraphs, under issue two, before the majority opinion then adds the seventh and eighth paragraphs, the latter exonerating Warren by one, and one only, conclusion which is this: “Although it is clear that Warren received the funds from the checks and became co-owner of the CD, the record is totally devoid of any evidence that she transferred anything. In fact, as noted earlier, the jury rejected all of State’s claims that she had committed any forgeries.” The sentence following this statement is, in essence, a lament by the majority opinion that it cannot hold otherwise. It is upon these last two paragraphs that I take great issue with, believing that the lamenting paragraph is totally irrelevant to a legal discussion and the “leap of logic” paragraph, upon which three convictions are reversed, is faulty in analysis.
We must consider the jury instructions submitted by the trial court in assessing the propriety of the three convictions on grand theft by transfer. In settlement of instructions, it is noted that the trial court inquired of defense counsel if defense counsel had any objection to the instructions which the trial court had prepared. *202On page 186 of the trial transcript, volume 5, we find:
Defense counsel: “The instructions in their present form, as indicated by the Court, are not objectionable to the defense.”
The court: “Very well, thank you.”
And thereupon the trial court read the instructions to the jury. Under past cases, in this Court, these instructions became the law of the case, as no objection was voiced by the defendant. A lawyer must protect the record for his client, i.e., preserve the record, with timely objections. And should file his own proposed instructions as to what he believes is the proper law in the case. He cannot idly sit by during the heat of the battle and then, later on, thump his chest, like an angry warrior, and bay at the moon. The leading case on the aforesaid subject in this Court is State v. Halverson, 87 S.D. 110, 203 N.W.2d 421 (1973). The rule is stated as follows: “Where no exceptions or objections were made by the defendant to any instructions of the court, and the defendant proposed no instructions, there is no question concerning the instructions before the Supreme Court on appeal.” This rule was reaffirmed in State v. White Mountain, 332 N.W.2d 726 (S.D.1983).
The majority decision now eviscerates the law of the case by expressing that the facts of this case, insofar as the three convictions on grand theft are concerned, do not fit within the term “transfer.” In my opinion, the terrible things that the defendant did to this aged, defenseless old man, fit squarely within the instructions and squarely within that which the statute forbids. Judge Tschetter’s instructions are found below, and they should be approved so that trial judges, in this state, in the future, have a sense of direction on how to instruct juries on this precise issue. Thus, I would approve these instructions and affirm the convictions, not simply because they are the “law of the case” but also because they correctly identify the elements of the crime itself.
Instruction 17 provided:
The essential elements of the offense of theft by transfer of property as charged in Counts IX through XVIII of the Indictment, each of which the State must prove beyond a reasonable doubt, are:
1. That the defendant at the time and place alleged in the indictment transferred moneys to benefit herself;
2. That said money was the property of John Edward Hess;
3. That the defendant transferred said moneys with intent to benefit herself without being entitled thereto, and
4. That the property had a value exceeding two hundred dollars.
Instruction 18 provided:
In a crime such as that of which the defendant is charged in counts IX through XVIII of the indictment, there must exist a union or joint operation of act or conduct and a certain specific intent.
In the crime of Grand Theft by Transfer there must exist in the mind of the perpetrator the specific intent to unlawfully deprive John Edward Hess of his property and unless such intent so exists that crime is not committed.
Let us now consider the evidence from a proper role as reviewers of the evidence in this case. Our scope of review is long established.
... when reviewing the sufficiency of the evidence our review requires that we accept the evidence and the inferences that the jury may have drawn therefrom in support of the verdict. The jury’s verdict will not be set aside if the evidence and the reasonable inferences therefrom sustain a rational theory of guilt.” (emphasis supplied mine).
State v. Bachman, 446 N.W.2d 271, 272, 273 (S.D.1989).
Clearly, as we apply the facts to the instructions of the trial court and consider our long-standing review, as set forth in Bachman, this Court should not set aside these guilty verdicts.
Consider these two instructions, given by the trial court, also, namely instructions 14 and 15. Instruction 14 simply sets forth, to the jury, the phraseology of SDCL 22-30A-2 which provides:
*203Any person who transfers property of another or any interest therein, with intent to benefit himself or another not entitled thereto, is guilty of theft.
Instruction 15, which is the pivotal point of law in this appeal, provides:
The term transfer, as used in these instructions means to convey or shift from one person or place to another or to make over the possession of legal title to another.
And “transfer,” under this definition, is exactly what Myria Warren did and for which she now stands convicted at the Bar of Justice.
There are no objections to these instructions by defense counsel. They are “law of the case” also. And these instructions are proper statements of the law and should be used by the trial judges of this state in the future.
Conviction on Count X of the Indictment
This arises out of Myria Warren swindling (thieving) Edward Hess out of $1,300 in rent money. She charged him rent of $700 on April 1, 1986. This was the “set amount of rent.” On April 16, her checking account reflected a balance of $5.83. She needed money. So she went to the aged, infirm man and obtained a check for $1,300 on April 16, 1986. She was not entitled to this extra $1,300 rent, and the evidence so established, and the jury so found. Myria Warren testified that she charged this extra $1,300 because of his illness. But the jury did not believe her! Rather, they believed she was guilty of swindling Mr. Hess out of $1,300 by having caused him to “convey” or to “shift from one person or place to another” or to “make over the possession of legal title to another.” She cheated him: she had him transfer money unto her that she was not entitled to; her account reflected an overdraw of $1,184.60 on April 1, 1986; plainly, she was short of money and she took advantage of Mr. Hess, the victim of her inferential, if not outright, theft. The jury drew inferences from the evidence, displaying its common sense, and that is why the holding in Bachman is right on point as we apply (or should apply) our scope of review in this factual situation.
Conviction on Count XI of the Indictment
This arises out of Myria Warren attempting to swindle and cheat and thieve any future heir out of a $20,000 CD in the name of Mr. Hess by simply having her name placed thereon as a joint tenant. She accomplished this because of the age and infirmity of this elderly man. Then to seal her transfer of this property, once the joint tenancy had been accomplished, she had Edward Hess place his initials, “E H” on the reverse side of the CD, or did it herself. This, in commercial law, then made it possible for her to cash the CD. When she was asked to return the CD, she refused, exercising a dominion over it. Common sense tells us that Myria Warren (A) did not own this CD and (B) she manipulated the CD into a position whereby she could cash the CD and thus, under instruction 15, “shift from one person to another,” i.e., transfer. Powerful testimony on this count came from June Grosse, a bank employee. She testified that she, indeed, changed CD # 54180 on April 23, 1986, from Hess to “Edward Hess or Myria Warren," as joint tenants. She further testified that she did not recall seeing Hess at all, when the CD was changed. She further testified that she did not see Hess sign his name or implant his initials on the CD. Furthermore, Mr. Hess himself testified that he did not sign the CD over to her and did not place his initials on the reverse side of the CD. The jury had a duty and right to consider this testimony. That it did. And it arrived at the conclusion that Myria Warren tried to “benefit herself.” Certainly the jury must have been swayed by testimony that Hess’ attorney demanded a return of the CD, and that Myria Warren refused to turn it over to said attorney. If she did not intend to “benefit herself,” she would have returned the CD promptly. Unquestionably, she was exercising dominion and control over this CD. It was not her CD, yet she transferred its status by having her name placed thereon as a joint *204tenant. Again, as we look at the statute, it is perfectly clear that she “shifted it from one person to another.” And she had thereby, also, had an instrument “made over,” i.e., the possession of legal title to another. It is wrong to reverse this conviction on the $20,000 CD.
Conviction on Count XII of the Indictment
This count pertains to the jury’s determination that Myria Warren obtained $2,000 from Edward Hess on May 1, 1986, and constituted a theft by transfer. The facts are that, on this date, a $2,000 check was written and one Dr. Zeldes, an expert, a forensic administrator, testified that, in his opinion, the signature of Edward Hess which appeared on the check was not written by Edward Hess. Hess denied, under oath, that he signed it. He testified that the check was too big. To understand Hess’ viewpoint, he earlier testified that Myria Warren started out charging him $400 a month to permit him to live in her home. He was asked if his rent was ever increased and he told the jury “whatever she could get.” This $2,000 check was written when Edward Hess was seriously ill. He did not receive the $2,000. Myria Warren cashed the check and she got the money. It was an unfair amount of rent; not only was it unfair, it was an outrageous amount. It was a transfer. Testimony revealed that, at this time, she was handling his business affairs such as writing out checks for him, handling his money, and making out deposits for him. Forgery has different elements than the crime My-ria Warren stands charged and convicted of in this specific count of the indictment, namely Grand Theft by Transfer. It is totally ungermane to rely upon rationale, such as the majority opinion on its discussion of reversing this count that “In fact, as noted earlier, the jury rejected all of State’s claims that she had committed any forgeries.” The jury had every right to determine that even if she did not sign Mr. Hess’ name, that she had been writing checks for him, and that if she caused Hess to write his name, and when he was quite ill, that she had no right to obtain a large amount of money, like $2,000, and then claim it as a reasonable amount of rent. Myria Warren testified, under oath, that Hess trusted her while he lived in her home. It is obvious that the jury concluded that she abused this trust and caused to be transferred, over unto herself, the sum of $2,000 which did not belong to her. Is it not true that the jury determines the facts? Myria Warren testified that she charged the said $2,000 as and for rent. She testified that this tremendous increase was due to the additional care Mr. Hess needed. The State dug up the evidence that, just the day before she obtained the said $2,000, Myria Warren’s checking account was overdrawn $2.90. This evidence was admitted and heard by the jury. So why did she obtain the $2,000? Easy answer. She needed it. And she had this old man’s checkbook under her control. Indeed, she caused to have transferred unto herself $2,000 which did not belong to her, it simply being the property of another, and with an intent to benefit herself, thereby fitting herself within the forbidden conduct of SDCL 22-30A-2.
Transfer. A word. What does it mean? Myria Warren now argues what it means in her appellate brief. There are three pages of argument on its meaning in Myria Warren’s brief. I say: It’s too late! Counsel is trying to come in the back door, arguing the definition of “transfer” when he failed to do so in the lower court. Judge Tschet-ter told the jury what it meant. There were no objections. The jury relied on these instructions, including the meaning of “transfer.” A sum of $2,000 was “shifted over” and “from one person to another,” exactly as set forth in the statute. Judge Tschetter’s instructions were proper; we should use them as precedent in the future.
Statutory construction is a rather vague expression. Quite generic in form, it can boil down to many interpretations, from one scholar of the law to the other, all well meaning in their interpretation of what the statute means. Great masters of the law such as Justice Holmes, Justice Brandéis, Learned Hand, and Benjamin Cardozo, all had different styles of literary persuasion *205when called upon to elucidate on the totality of the meaning as it concerned the enactment before them. These styles stem from different approaches, ideas, and thoughts on statutory construction. Unquestionably, before us, does there stand a question of the interpretation of a statute. I can hardly pit myself against the great masters. However, I am constrained to say that the first step in construing a statute requires a recognition and implementation of its underlying purpose. I ask myself: What were the mischiefs intended to be remedied by this statute? Secondly, I further ask myself: What good was the Legislature trying to achieve for the people? Thirdly, I ask myself: How can I apply this statute using words in their ordinary signification so that they do not produce an absurdity?
Before us, the majority seems to take a very restricted, literal approach as to what constitutes “transfer.” I simply cannot join it. I believe the majority uses a strained subtlety, by employing the “forgery” argument, to inadvertently miss the purpose — the mischief — for which this statute was passed by our State Legislature. Doubt and darkness alight upon the Grand Theft by Transfer statute in our state, as a result of the majority opinion. Unfortunately, we have not lit a candle for judges in the future. It appears that the statute has been misinterpreted by the majority opinion because the jury did not find that Myria Warren committed forgery. I call your attention, under the general title of CRIMES, to SDCL 22-1-1:
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, (emphasis supplied mine).
I seriously doubt that there is inadequate statutory draftmanship before us. It appears to me that this Court has placed a rather sharp rephrasing as to the meaning of the statute, eradicating the mischief which it seeks to condemn, and thus does limit its practical effect. Penal statutes are not to be strictly construed, but rather by the fair import of their terms. We have said so in several cases. State ex rel. Strauser v. Jameson, 76 S.D. 490, 81 N.W.2d 304 (1957); Bartron v. Codington County, 68 S.D. 309, 2 N.W.2d 337, 140 A.L.R. 550 (1942); State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580 (1910). The Grand Theft by Transfer statute was passed to make certain acts criminal which offend our society, acts which we see before us committed by Myria Warren. Instruction 15 defines “transfer,” which I have set forth above. Three of her felony convictions are being reversed due to that word “transfer.” The literal force of the majority’s rigidity in statutory construction has eschewed the words of the State Legislature, and thus, denied the will of the sovereign.
Thus, I respectfully dissent to the reversing of the three convictions aforesaid.