(specially concurring).
SDCL 22-30A-17 defines petty theft and grand theft. It sets forth degrees of petty theft. Grand theft is over $200. Petty theft is $200 or less. Petty theft for $100 or more is in the first degree and is a Class 1 misdemeanor. Petty theft of less than $100 is in the second degree and is a Class 2 misdemeanor. Here, obviously, the shoplifting is a petty theft offense as evidenced by the language of SDCL 22-30A-17.
*26If an eleven year old takes a chocolate Easter egg, a few days before Easter, and without paying for it, eats it, and walks out of the store, has he/she committed second-degree burglary under the statutes of South Dakota? SDCL 22-30A-17 (shoplifting) was not considered by the State. Using State v. Shult, also cited in the majority writing, wherein I dissented, the State and trial court seized upon, and employed, a second-degree burglary charge. My indictment of the amorphous burglary statute in this state is set forth in said dissenting opinion, so I shall not repeat it here, at length;1 suffice it to say, the preposterous result witnessed in Tripp County by the prosecution of this little girl, was a type of horror/nonsensical situation envisioned in my dissent. At the risk of legal narcissism, I quote but a small part of my Shult dissent, 380 N.W.2d at 358:
This second-degree burglary statute has a sweep whereby any and all crimes in occupied structures are amalgamated together by the same punishment depending upon the whim of the prosecutor. Prosecutors must have some channels of discretion and restraint.
T.J.E. was found to be a delinquent child as she “commit[ted] the public offense of BURGLARY IN 2ND DEGREE ... in violation of SDCL 22-32-3 and SDCL 22-30A-1[.]” See Petition with Findings of Fact and Conclusions of Law herein. Thereupon, she was (after having been found to be a delinquent) placed upon probation with five conditions of probation. Such a finding and punishment (the five conditions were intended as a type of punishment) is contrary to common sense and justice. This prosecutor chose to prosecute under a felony, the child having eaten a chocolate Easter egg, rather than prosecuting for a Class 2 misdemeanor. Not only does it violate common sense, but in my opinion, it violates the Eighth Amendment to the United States Constitution which provides a guarantee against cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). No child should suffer such an adjudication upon his/her record for second-degree burglary by virtue of snitching a chocolate Easter egg and eating it without paying for it; nor, for that matter, be put under the mandate of a court with five conditions which govern the child’s conduct for a period of three months. Granted that the trial court ordered that Imposition of Adjudication of Delinquency be suspended, nonetheless, as I have pointed out above, the child was determined, as a matter of law, to be a burglar. The maximum penalty for second-degree burglary in South Dakota is a maximum sentence of 15 years and a $15,-000 fine (SDCL 22 — 6—1(5)). Based upon this selective prosecution by the prosecutor, the punishment is grossly disproportionate to the act and of such a degree that the determination against this child as a delinquent for having committed second-degree burglary, with probation conditions attached, is unconstitutional. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This adjudication afflicts a harm upon the child which is needless 2 and disproportionate to the act. This needless affliction, so burdensome for this little girl, does shock my conscience. See State v. Swallow, 405 N.W.2d 29 (S.D.1987), for shock the conscience of the Court concept. As I have written in the past, one day in jail can be cruel. For a child to go through this type of proceeding and counseling and trips to a court services officer, can be humiliating, degrading, and self-defeating. In common language, a little girl should not have been treated this way. This was a de minimis act. See State v. McCann, 354 N.W.2d 202, 204 (S.D.1984). *27This case should not have reached the circuit court and Supreme Court levels. It could have been treated in an informal setting.
This prosecution creates, within the community, an opportunity of political advantage for the prosecutor to be known as a tough prosecutor to enhance his image of convictions in the community. Question: How harmful is it to society to remove a candy chocolate egg from a store? See Standard 3-3.9, American Bar Association, Standards for Criminal Justice (2d ed. 1980). See also State v. Karpinski, 92 Wis.2d 599, 285 N.W.2d 729 (1979).
Furthermore, I note that the child made “incriminating statements” unto the Pami-da store manager, i.e., she took the chocolate candy and ate it without paying for it. Later, a police officer was called and she then made, under question, the same admissions to the police officer. It should be noted that the little girl did not make any admission until she was asked three times if she took the candy, and she finally “confessed” to this dastardly deed when advised by the store manager that he had a video tape of her taking the chocolate Easter egg (video statement not true). Thus, it appears that under the totality of circumstances test, at least in juvenile cases in this state, this young, inexperienced girl should not have been inherently coerced. See State v. Caffrey, 332 N.W.2d 269 (S.D.1983); State v. Lohnes, 324 N.W.2d 409 (S.D.1982). It is long settled law in the United States that the greatest care must be taken to make sure an alleged confession of a juvenile is voluntary. In re Gault, 387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527, 561 (1967). This little girl did not know how to protect her rights. When she was confronted by this manager and police officer with accusations, legal process set in for her, long recognized by the United States Supreme Court and the South Dakota Supreme Court. She did not, in my opinion, voluntarily waive her Fifth Amendment rights by a knowing and intelligent relinquishment. She is entitled to additional protection, as a juvenile. See Lohnes, 324 N.W.2d at 414.
Therefore, I would reverse this adjudication that T.J.E. is a delinquent child, setting aside and holding for naught a finding that she committed the public offense of second-degree burglary. She should have, initially, been treated as a possible shoplifter with store manager and parents) having a conference. Given the decision by the store manager to coerce her by the video statement ploy and given the calling of a police officer, both of whom were making accusations, Easter egg eater or not, as a juvenile she is entitled to her constitutional rights in Tripp County, South Dakota. Prosecutors should use a prosecutorial function to a better advantage than displayed here. If I understand the facts correctly, TJ.E.’s adult relative offered to pay for the chocolate egg which T.J.E. consumed before the forces of the law were set in motion. It is difficult not to scoff at this type of justice and not to feel sorry for the little girl and her aunt who were caught up in the capricious law enforcement on a given day in Tripp County. Law, in the end, does have to make sense.
. Note, "Steal the Chicken at the Henhouse Door:” The South Dakota Burglary Statute, 25 S.D.L.Rev. 158 (1980), is a concise treatise on the burglary versus petty theft issue. Title of this article is spawned by a quote pertaining to the narrowing of Arkansas’ once overly broad burglary statute. “For instance, entering a hen house to steal a chicken became a serious felony, while stealing a chicken at the hen house door was mere petit larceny.” Supra, at 161.
. Could not the manager and the parent(s) arrived at a solution to (a) pay for the chocolate and (b) have the parents discipline the child at home? Would not some common sense have obviated all of these costly and time-consuming proceedings?