(concurring and dissenting).
While we agree with the conclusion reached by Justice Smith in his opinion, we conclude that under I.C. § 19-2601 the district court did have jurisdiction to incarcerate the accused in the county jail as a special condition of the probation order.
In the proviso to I.C. § 19-2601, it is stated that if the crime involved is a felony and judgment is either suspended or withheld, “and the court shall place the defendant upon probation, it may be to the board of corrections or to some proper person selected and designated by the court, under such terms and conditions as the court deems necessary and expedient.” On its face, the statute clearly gives the district court wide discretion in prescribing the terms and conditions of probation.
The Justice Smith opinion recognizes that the statute has delegated to the district courts abundant discretionary powers *307in this area; however, it is contended therein that absent express statutory authority, courts are without jurisdiction to require imprisonment as a condition of probation. It was stated that: “ * * * while the trial court has broad discretion in prescribing the conditions of probation, it is not given the necessary authority to incarcerate a defendant in the county jail as a special condition of probation.” Were this the rule in this case, it would frustrate legislative intent by unjustifiably hampering the rehabilitation obligation and restricting the probationary powers of our trial courts.
In State v. O’Dell, 71 Idaho 64, at page 69, 225 P.2d 1020, at page 1022 (1950), we discussed the purposes and aims of the probation statute as follows:
“Sec. 19-2601, I.C., which extends to district courts the power to reduce the sentence provided by statute by confining the defendant in the county jail, or to suspend the execution of the judgment, or the pronouncement of sentence, or to withhold judgment and place the convicted person on probation at his discretion, is a humane provision, permitting the court, in proper instances, to exercise clemency in imposing sentence. The purpose of the statute is the reformation and rehabilitation of a defendant, particularly a first offender, and to give him an opportunity to reform and take his proper place in society. * * * ” (Emphasis supplied.)
Because of their humane provisions and their highly remedial nature, statutes providing for suspension of sentence and probation are universally given liberal construction. Reeves v. United States, 35 F.2d 323 (8th Cir. 1929); Riggs v. United States, 14 F.2d 5 (4th Cir. 1926); Mann v. United States, 218 F.2d 936 (4th Cir. 1955); State v. Tomczyk, 20 Conn. Sup. 67, 123 A.2d 283 (1956); State v. Taylor, 151 Fla. 296, 9 So.2d 708 (1942); Meyer v. Missouri Real Estate Commission, 238 Mo.App. 476, 183 S.W.2d 342 (1944); Fuller v. Commonwealth, 189 Va. 327, 53 S.E.2d 26 (1949); Dyke v. Commonwealth, 193 Va. 478, 69 S.E.2d 483 (1952); United States ex rel. Tomasello v. Smith, 50 F. Supp. 464 (E.D.Penn.1943). In Idaho, we have long recognized and adhered to the rule that a remedial statute must receive a liberal construction in order to effectuate its purposes. Villages of Eden and Hazelton v. Idaho Bd. of Hwy. Dir., 83 Idaho 554, 367 P.2d 294 (1961).
As noted earlier, the purpose of the probation statute is nothing more or less than rehabilitation. State v. O’Dell, supra. With this in mind, the particular sentence which was imposed by the trial judge carried forth the statutory purposes. As *308a federal judge stated when dealing with a similar problem:
“ * * * I often find a young man, not really criminal at heart, but who needs a firm and decided check. A fine is no punishment for profitable crime, hut rather stimulates to a return to it to retrieve the loss or pay back the money borrowed to pay the fine. A few days or weeks of confinement, with nothing to do but think, not in a penitentiary or crowded city prison, but in an almost tenantless rural jail, does far more to bring him to his senses, and to impress his companions, than any other thing will. If several months of such a sentence could be kept suspended over him afterwards, while on an informal five-year probation, it would practically insure his good conduct. It is far more effective than fear of a second offence, for as to that he must be discovered and convicted, with the many chances of escape involved, but a suspended sentence may fall upon him if and when his general conduct and reputation becomes such as to satisfy the judge that his probation is a failure.” Archer v. Snook, 10 F.2d 567, 570 (N.D.Ga.1926).
It can hardly be disputed that such an order as was given in the instant case is clearly within the tenor and purpose of this humanitarian statute.
Justice Smith’s opinion would have us restrict the meaning of probation so that it could never encompass incarceration. While such a restriction might have seemed reasonable twenty or thirty years ago, it is rapidly becoming apparent in this dynamic area of the law that probation signifies the employment of any reasonable means which may be used to effectuate the rehabilitation of the defendant. Thus in various jurisdictions, probation has been used to keep the defendant out of the automobile business, People v. Caruso, 174 Cal.App.2d 624, 345 P.2d 282 (1959); to sterilize the defendant, People v. Blankenship, 16 Cal.App.2d 606, 61 P.2d 352 (1936); to keep the defendant out of his own labor union, People v. Osslo, 50 Cal.2d 75, 323 P.2d 397 (1958); to force the defendant to give up gambling, Barnhill v. United States, 279 F.2d 105 (5th Cir. 1960); to make the defendant disclose evidence relevant to the crime for which he was convicted, United States v. Worcester, 190 F.Supp. 548 (D.Mass.1961); to make the defendant repair a building, People v. Sarnoff, 302 Mich. 266, 4 N.W.2d 544, 140 A.L.R. 1206 (1942); to force defendant to seek suitable employment, People v. Oskroba, 305 N.Y. 113, 111 N.E.2d 235 (1953); to force defendant to remain in a specified county, Miller v. State, 168 Tex. *309Cr.R. 570, 330 S.W.2d 466 (1959); to force defendant to pay the funeral expenses of his victim, State v. Summers, 60 Wash. 2d 702, 375 P.2d 143 (1962); and to require the defendant to undergo such psychiatric and related treatment as the probation department from time to time may specify, People v. Ragusa, 20 A.D.2d 716, 247 N.Y.S.2d 310 (1964).
Moreover, in at least five jurisdictions, under statutory provisions no broader than I.C. § 19-2601, defendants have been required to serve periods of incarceration as conditions of their probation. In Texas and Kentucky, defendants have been made to serve, as conditions of their probation, terms of imprisonment in the Federal Narcotics Hospital in Lexington, Ky. Reese v. State, 167 Tex.Cr.R. 304, 320 S.W.2d 149 (1959); Fisher v. Commonwealth, 243 S.W.2d 881 (Ky.1951). In Minnesota, a defendant was placed on probation for five years subject to the condition that he spend the first year of his probation in the workhouse of the city of Minneapolis. Breeding v. Swenson, 240 Minn. 93, 60 N.W.2d 4 (1953). In the federal courts, one of the conditions of the order of probation was that for three years, relator surrender to the custody of the United States Marshal every week for a period of twenty-four hours. United States ex rel. Spellman v. Murphy, 217 F.2d 247 (7th Cir. 1954). In Ohio, the court ordered that defendant spend ten months in the county jail as a condition to his probation. Tabor v. Maxwell, 175 Ohio St. 373, 194 N.E.2d 856 (1963). In all of the above cases, the orders of the trial court were recognized as being valid upon appeal. (See also State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963), in which this court recognized that imprisonment is often used as a condition of probation.)
Diligent search throughout all of our probationary statutes fails to reveal any provisions which would justify the interpretation placed upon I.C. § 19-2601 by Justice Smith’s opinion. As a matter of fact, all of the statutes which deal with probation reflect the liberality.of the legislative intent in this area. A startling example is I.C. § 20-221, which states that, “By order duly entered the court may impose and may at any time modify any conditions of probation or suspension of sentence. * * ”
Moreover, the very terms of I.C. § 19-2901 require liberality in this area. There is contained therein no restrictions and no limitations other than that which the court “deems necessary and expedient.” In order to sustain Justice Smith’s position, we would be forced to read into the statute terms and conditions which have absolutely no place in this area of the law. The statute was passed to effectuate rehabilitation. It deary provides that any reasonable means may be used in furtherance *310of this laudable purpose. To adopt any other point of view would hamstring our trial judges, and disregard the beneficent purposes of our act.
The Justice Smith opinion fails to cite, and we are unable to find, any factually similar case which has arisen in the last thirty-three years which supports its position. People v. Robinson, 253 Mich. 507, 235 N.W. 236 (1931) seems to be the most recent expression of opinion which has been decided in its favor.
Only five months ago, however, the Supreme Court of Ohio ruled in a case indistinguishable from the case at hand, that the trial court had authority to condition probation in a felony case upon the accused’s serving of a sentence in jail. Tabor v. Maxwell, supra. Quoting from 194 N.E.2d page 857 of the report, the facts are as follows:
“ * * * On December 18, 1959, the Grand Jury of Summit County returned an indictment charging petitioner, Bernard Herbert Tabor, with one count of forgery. A plea of not guilty was entered and counsel was appointed to represent him. On January 12, 1960, petitioner withdrew his plea of not guilty and entered a plea of guilty. The court thereupon found that the public good did not require immediate sentencing and ordered that the imposition of sentence be suspended and that petitioner be placed, on probation for a period of three-years. As a condition to such probation, the court ordered that petitioner spend ten months in the county-jail with credit for time already spent: in the jail to he credited on the ten. months. On June 8, 1962, petitioner-was brought into court as a probation violator. After a hearing, petitioner’s probation was revoked and he was sentenced to the Ohio Penitentiary.”
On page 858 of 194 N.E.2d, the Supreme-Court discussed the action of the trial', court:
“Petitioner argues that the conditioning of his probation on the serving of a jail sentence after he was ' sentenced to the penitentiary for one to 20 years was void. It must be noted' here that petitioner zvas not placed on-probation after sentencing, as the im-position of the sentence zvas suspended,. In other words, petitioner was not sentenced at the time he was placed on-probation. * * *” (Emphasis supplied.)
* * * * * *
“The question which arises in this-case is whether a judge may make the: serving of a jail sentence a condition, to probation in a felony case. Section 2951.02, Revised Code, provides that, the defendant may be put on probation. *311'upon such terms as such judge or magistrate determines.’ This section endows the trial court with broad general powers in relation to conditions which may be imposed upon one placed on probation. It has been held that a court may condition probation in a felony case upon the accused’s serving of a sentence in jail. * * * In addition to this, however, petitioner accepted the terms of the probation and thus is now in no position to complain. % sfc s}: >>
The complete text of the Ohio Probation Statute referred to above reads as follows :
“2951.02. Defendant on probation. Where the defendant has pleaded guilty or has been found guilty and it appears to the satisfaction of the judge or magistrate that the character of the defendant and the circumstances of the case are such that he is not likely .again to engage in an offensive course of conduct, and the public good does not demand or require that he be immediately sentenced, such judge or magistrate may suspend the imposition of the sentence and place the defendant on probation upon such terms as such judge or magistrate determines. This section does not apply to juvenile delinquents.”
At this point, we feel it advisable to repeat the issue with which this dissent is concerned as it was defined in Justice Smith’s opinion: “whether the court had jurisdiction, under I.C. § 19-2601, to incarcerate the accused in the county jail as a special condition of the probation order.” If this is the issue, it is clear that recently at least four jurisdictions under similar statutes have held a, court may condition probation in a felony case upon the accused’s serving a period of incarceration. Tabor v. Maxwell, supra; United States ex rel. Spellman v. Murphy, supra; Fisher v. Commonwealth, supra; Breeding v. Swenson, supra. Furthermore, two other jurisdictions, including our own, have lent tacit assents. Reese v. State, supra; State v. Bassett, supra. In the Ohio, Texas, and Idaho cases, the situations are exactly the same in that judgment was withheld and probation was imposed without the imposition of sentence. In the Federal, Minnesota, and Kentucky cases, sentence was imposed but suspended at the time of judgment and the defendant was then placed upon probation. The Justice Smith opinion would attempt to distinguish these last three cases.
First of all, if we adhere to the issue as it was defined, these three cases cannot be distinguished. All three are concerned (as is the instant case) with whether or not incarceration can be made a valid condition *312of probation. All three answer the issue in the affirmative.
Secondly, Justice Smith’s opinion fails to mention any basis upon which these cases can be distinguished. We cannot see any realistic difference between the statement, “I hereby sentence you to three years in jail. However, I will suspend the execution of this judgment and place you on probation on the condition that you spend six months in the county jail.” and “I’m going to withhold judgment and place you on probation on the condition that you spend six months in the county jail.” The same effect is achieved either way. If one is valid, it would be a travesty to rule that the other is not. The law has long since outgrown medieval formalities which dictate that if you fail to say exactly the right thing in exactly the right way, you risk being thrown out of court.
Finally, the statute itself makes no distinction. We might agree that if the aforementioned three cases the execution of the sentence had not been suspended at the time of judgment, but at some time “during the term of a sentence in the county jail” [(I.C. § 19-2601(2)] that they might possibly be distinguished on that basis. However, the statute takes part of number 2 (Suspend the execution of the judgment at the time of judgment) and all of number 3 (Withhold judgment on such terms and for such time as it may prescribe and may place the defendant upon probation) and places them together in the proviso~ In other words, they are treated exactly-the same by the statute. Both are to be read together and both are subject to the same:; liberal terms of probation:
“Provided, however, that if the crime involved is a felony and if judgment is withheld as provided in 3. above or if judgment and a sentence of imprisonment to the penitentiary is suspended at the time of judgment in accordance with 2. above and the court shall place the defendant upon probation, it may be to the board of corrections or to. some proper person selected and designated by the court, under such terms and conditions as the court deems necessary and expedient; * * (Emphasis supplied.)
To make the distinctions that the Justice-Smith opinion attempts in this case would beta ignore the obvious intent of the legislature that the two portions of the statute should be treated alike.
To summarize, we make the following-points: 1. The statute is broad enough to permit a trial judge to order incarceration as a condition of probation; 2. Statutes, of this nature, due to their humane provisions, are universally given a liberal inter-pretation; 3. Ample authority exists to support the actions of the trial court; and. 4. There is no justification for the position., *313•of the Justice Smith opinion under modern authority or any known rules of statutory interpretation.
Finally, it should be pointed out that petitioner is presently in no position to challenge the validity of the action of the trial court. He accepted the terms of the probation and acquiesced in the conditions of the liberty accorded him and thus is now in no position to complain. Tabor v. Maxwell, supra; Persall v. State, 31 Ala.App. 309, 16 So.2d 332 (1944); In re McClane, 129 Kan. 739, 284 P. 365 (1930); Hunt v. State, 186 Ind. 644, 117 N.E. 856 (1917); Brooks v. State, 51 Ariz. 544, 78 P.2d 498, 117 A.L.R. 925 (1938).
We conclude, therefore, that under I.C. § 19-2601, the district court did have jurisdiction to incarcerate the accused in the county jail as a special condition of probation.