concurring and dissenting.
I dissent from Part V of the majority opinion. My brethren in the majority have departed from their normally rational temperament and here employ a limited and technical construction of I.C. § 18-3107 and § 18-3108.
The majority reverses in Part V based on its interpretation of the requirements of 1.C. § 18-3107 as defined by I.C. § 18-31081 and particularly the word “abscond.” The obvious infirmity in the majority’s reasoning is their construction that overlooks our role as appellate justices; that we are merely asked to judge the works and actions of normal human beings. “The law is not a series of calculating machines where definitions and answers come tumbling out when the right levers are pushed.” William O. Douglas, The Dissent, a Safeguard of Democracy, 32 J.Am.Jud.Soc. 105 (1948).
A plain reading of the two statutes involved would give fair notice to all that a person is subject to criminal liability should that person leave a restaurant with the intent of not paying for the food he just ate. Somehow the majority, by referring to a dictionary definition for one of the 86 words in I.C. § 18-3108, finds a hidden meaning in those statutes.
It must be remembered: “As in other sciences, so in politics, it is impossible that all things should be precisely set down in writing; for enactments must be universal, but actions are concerned with particulars.” Aristotle, 2 Politics at 8.
A short analysis will show the fallacy inherent in the type of legal interpretation employed by the majority opinion. The majority requires the state to prove DeVoe “absconded”2 from the premises. This is *284explained to mean DeVoe must be shown to have secretly, clandestinely, surreptitiously left the restaurant. The statute does not require such.
What the statute does require is an intent to defraud. Idaho Code § 18-3107 sets out the crime of which DeVoe is accused. The word “abscond” appears only in the next section, I.C. § 18-3108. The purpose of this second section is to give the state one way, but by no means the only way, to prove a violation of I.C. § 18-3107.3
The majority reverses the finding of the trial court because of the trial judge’s use of the word “abscond.” However, the trial judge understood very well the requirement of the statute. He stated, “I think what it really boils down to is the question as to whether there was an intent to defraud and as to whether intoxication is any excuse for that. ...”
Proving fraudulent intent is not easy, considering the very personal nature of fraud. Again, in the words of the trial judge, “I have to draw the question of intent from the circumstantial evidence and the facts as it appears to the Court.”
These statements show the trial judge understood the requirements of I.C. § 18-3107 and applied them at trial. The testimony at trial consisted of the security guard at the restaurant, the defendant DeVoe and a co-defendant who ate with DeVoe. DeVoe’s defense was that he was too intoxicated to form the intent to defraud and that he had just merely forgotten to pay the check. The judge heard this testimony and chose to disbelieve it. His finding of guilt was based on his opinion that DeVoe did possess the fraudulent intent, the finding was not based on an erroneous reading of the law. The trial judge held:
It doesn’t appear to me . . . that either one of you were so intoxicated and so drunken that you could not have possibly formed the necessary intent to violate the law.
[CJertainly it doesn’t appear to me that either one of you was so drunk that you couldn’t possibly form the necessary intent. You both knew what you were doing. .
“The determination of the credibility of witnesses and the weight to be given their testimony are exclusively within the province of the trier of facts.” Cornish v. Smith, 97 Idaho 89, 91, 540 P.2d 274, 276 (1975).
Recognition of the trial court’s advantages has resulted in a rule regarding the scope of review. “The special deference accorded the findings of fact of the court below is a recognition of the special opportunity of the lower court to assess the credibility of the witnesses in the proceeding there. I.R.C.P. 52(a)” Prescott v. Prescott, 97 Idaho 257, 261, 542 P.2d 1176, 1180 (1975).
Intent to defraud is a question of fact within the province of the trial court. Because the evidence in this case consisted of the testimony of three persons, the trial judge is in a far better position than we to ascertain whether DeVoe possessed .the requisite intent.
“[Wjhether a fraudulent intent exists is said to be a question of fact for a trial court rather than of law for an appellant tribunal.” Grant v. Segawa, 44 Cal.App.2d Supp. 945, 112 P.2d 784, 786 (1941).
The trial judge could well have found this intent to defraud by the fact that DeVoe left without even taking the check from the table. In fact, the trial judge did find *285DeVoe possessing the requisite intent and he chose to disbelieve the intoxication defense. There is evidence to support this finding. This finding should not be disturbed, especially on the ground of a dictionary definition of one word that is not a part of the crime.
SHEPARD, C. J., concurs.. Justice Bistline intimates that we have previously ruled I.C. § 18-3108 unconstitutional by implication in State v. Grimmett, 33 Idaho 203, 193 P. 380 (1920). This is apparently because Justice Bistline feels statutes creating prima facie evidence unfairly affect the presumption of innocence.
State v. Grimmett, supra, did not deal the “death blow” to I.C. § 18-3108. Two statutes of prima facie evidence were involved in Grimmett. One of these statutes said the brand on an animal shall be prima facie evidence that the animal belongs to the owner of the brand. The other statute provided that anyone slaughtering a cow must keep the hide with the brand for thirty days to prove ownership. Failure to do so was prima facie evidence of the commission of grand larceny.
In Grimmett the Court criticized this second statute, not on the grounds of a shifting burden, but because the statute was overly broad: “If the statute had referred only to the alteration of brands upon the hide, or the defacement of other marks thereon, possibly there might have been some connection between the act and the fact to be presumed.” Id. at 210, 193 P. at 382.
Grimmett clearly did not address any issue related to those here. Grimmett involved the grand larceny of a cow and did not involve fraud in any form.
A check reveals a veritable cornucopia of authority that has upheld the constitutionality of statutes identical to I.C. §§ 18-3107, -3108. See Smith v. State, 141 Ga. 482, 81 S.E. 220 (1914); Clark v. State, 171 Ind. 104, 84 N.E. 984 (1908); State v. Benson, 28 Minn. 424, 10 N.W. 471 (1881); State v. Kingsley, 108 Mo. 135, 18 S.W. 994 (1892); Commonwealth v. Berryman, 72 Pa.Super. 479 (1919); See generally, Annot., 51 A.L.R. 1160 (1927).
. My dictionary tells me that the word “abscond” has Latin origins, being a combination of ab (from) and condere (hide). Websters New World Dictionary 3 (1973). The evidence in this case, as applied to I.C. § 18-3108, could *284very well mean that the defendant was hiding the fact that he was leaving the restaurant without paying. He does not necessarily have to be shown to be hiding the fact that he was leaving the restaurant for the fact-finder to uncover an intent to defraud. What the defendant could be doing by leaving his check at his table, is hiding the fact that he was not paying for his food.
. One court has justified these statutes, which establish a prima facie case of fraudulent intent, as follows: “It is not going beyond sound reason to say that when a person asks for and receives accommodations at a hotel for which he does not pay ... he should assume the burden of showing an honest intent.” Ex Parte Milecke, 52 Wash. 312, 100 P. 743, 745 (1909).