concurring and dissenting.
I
I join in the majority opinion, excepting Part VI. In Part VI, the majority upholds the sentence meted out by the district court to Ms. Wagenius. The Court’s opinion indicates at least an attempt at meaningful appellate court review, the lack of which I objected to in State v. Adams, 99 Idaho 75, 577 P.2d 1123 (1978).
Janella Wagenius’s attempt at budgeting the spending of her welfare check was not a success. Divorced in September, 1974, at the age of 20 and awarded custody of a one and a half year old baby, she opened the ill-starred bank account on December 5, 1974, with a $170.00 deposit. Bank records placed in evidence showed she was completely out of money by December 19, most of her sparse account having gone to local grocery outlets.
The presentence investigator, Mr. Gordon Hood, presented a complete report on Ms. Wagenius, which included her statement as to how poor management of a checking account ran her afoul of the law:
I ordered oil from the Co-Op Supply Company. Don Chamberlain brought the oil and so I wrote him a check and he took it and left. Then about a month later Rich Walters, works for the Police Department, came to my home and said that there was a warrant out from Co-Op Supply for me from writing a bad check, so I went with him to the City Hall and he showed me the warrant and then he fingerprinted me and took a picture.
That same day I went to Court and a lawyer was to be appointed to me and it’s Mike Verbillis. Then I had to go talk to him (I got out on my O.R.) so we went back to Court a couple weeks later. I then found out there were some more checks that hadn’t gone through so we contacted the businesses and I made arrangements to pay them back.
Mr. Hood’s report noted Wagenius’ totally innocuous prior record of one minor traffic violation, to-wit: inattentive driving. He concluded that she was in need of vocational rehabilitation and suggested that she consult with a volunteer counselor, and that she pursue a G.E.D. certificate. He recommended Wagenius as a candidate for a withheld sentence probation and suggested restitution as to outstanding dishonored checks.
At the hearing the trial court expressed concern that it would be impossible for her to make restitution out of her $218 income, the amount of her monthly check. The deputy prosecuting attorney at this point interjected the proposition that, in the last six months, he had been seeing more often where welfare individuals were “getting into the check-writing area.” As to Ms. Wagenius, however, he stated: “She can find a job and make restitution.” Nevertheless, the trial court reasoned:
THE COURT: This does pose a dilemma for the Court in trying to figure out what to do and it would seem only fair that a requirement of restitution be made but at the present level of income it would appear totally impossible. I am concerned as you express too, Mr. Brown, people cannot expect just because they may be in difficult financial stress to go out and write checks and not expect to face the consequences. Mrs. Wagenius, it will be the order of this Court the judgment and sentence in this matter be withheld for a period of three years. The conditions under which the sentence is to be withheld are as follows. That you first will be incarcerated in the Kootenai County jail for a period of thirty days. Upon completion of that period, under the direction of the State Board of Corrections. the conditions for continued withholding of sentence and judgment *286that you not violate any laws of this state, city, or county therein. (Emphasis supplied.)
On a point of legal theory, we are not, strictly speaking, engaged in “sentence” review. Rather, as the foregoing remarks show, “sentence” was not imposed, but specifically was withheld. “Incarceration” was ordered, as a part of her probation. Justice McFadden’s dissent from Part IV of the Court’s opinion raises very serious doubts that “incarceration” of any kind, absent a judgment of conviction, is constitutionally permissible.
Of one thing I am certain, however, and that is that 30 days in the Kootenai County jail is excessive, and it is uncalled for. The majority opinion says it might appear to be harsh, but is willing to go along with it because the Court members “do not have the benefit of personally viewing the defendant as the trial court did at time of the plea and sentencing. She may have displayed no remorse for her act, or worse, could have been contemptuous of the law and the court.” 1 Having speculated as to such possibilities, the opinion then accepts them as true, and proceeds to declare that “a short period of confinement could have a salutary effect” on her future behavior.
It is clear that meaningful sentence review in Idaho remains somewhere in the distant future. Any jail time in this case, whether under sentence, or incarceration as part of probation, beyond one 24-hour day, is totally unjustified.
Ms. Wagenius will, I am certain, be grateful for the Court’s subtle suggestion to the trial judge that he is not obliged to incarcerate her for the specified 30 days. For my part, I suggest that the trial court is thoroughly knowledgeable in the law, and did not need this advice. Being less inclined to subtlety, I suggest outright that if Ms. Wagenius has made a sincere effort at paying off or reducing her debts, the proper disposition of the case is outright dismissal and discharge, as envisioned by the legislature in enacting § 19-2604(1). Clearly, the successful completion of two years of a three year probation period, during which she was subject to the constant threat of 30 days’ incarceration in the Kootenai County jail, together with some bona fide effort at restitution, should result in a dismissal and discharge as being “compatible with the public interest.”
II
In Part V, the majority opinion overturns the conviction of Craig DeVoe on a charge that he did
knowingly, wilfully, intentionally, unlawfully and fraudulently procure food at the Cock of the Walk restaurant, . with the intent and purpose by fraudulent pretenses to fail to pay any value for said food and then and there deprive the proprietor of Cock of the Walk, out of the value of the same in the amount of Thirteen Dollars and Eighteen Cents ($13.18).
As Justice Bakes’ diligent perusal of the record demonstrates, there was no evidence at all to sustain this charge, much less to sustain it beyond a reasonable doubt, as is necessary for any criminal conviction to stand in Idaho. State v. Erwin, 98 Idaho 736, 572 P.2d 170 (1977).
Justice Donaldson, in dissent, complains that “the majority have departed from their normally rational temperament” and here employ a limited and technical construction of I.C. §§ 18-3107 and 3108. This is a serious accusation deserving of a reply. As the majority opinion notes, the Idaho innkeepers’ statute makes it a crime “to obtain food ... at any restaurant . . with intent to defraud the owner or keeper thereof by not paying for the same.” I.C. § 18-3107. The “fraudulent procurement of food” which is proscribed by I.C. § 18-3107 is a crime of specific intent. It could not be otherwise. Idaho, like most other states, has an express *287constitutional prohibition against imprisonment for debt “except in cases of fraud.” Idaho Const, art. 1, § 15. That the language was not lightly chosen is clear from the fact that the constitutional convention rejected a more lenient formulation which would have required only a “strong presumption of fraud.” Mr. Reid, speaking in defense of the stricter language, stated:
As recognized now in most states you can arrest a debtor in a civil action in any case of fraud, for instance an absconding debtor. I do not like the expression there “where there is a strong presumption of fraud.” I think the affidavit should always show such a state of facts that the court in passing upon it shall find there was fraud when he issues the order of arrest, and the substitute I have sent up embodies the statement contained in most constitutions. Where there is fraud he can always be arrested, as an absconding debtor. (Emphasis supplied.)
Constitutional Convention Proceedings, Vol. 1, p. 370.
This constitutional prohibition against imprisoning debtors “except in cases of fraud,” has several strict corollaries. In the first place, any statute which made mere non-payment of debt a criminal offense would be unconstitutional. See, for example, People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972) in which the Supreme Court of Colorado held that state’s insufficient funds check statute unconstitutional for precisely such a defect. In like manner an information which failed to allege the specific intent of criminal fraud in the procurement of food or lodging would be “fatally defective” as having omitted an essential element of the crime and any conviction based thereon would have to be overturned. Agnew v. State, 474 S.W.2d 218 (Tex.Crim. App.1971). Finally, the constitution makes it clear that “[s]uch an intent could not be inferred solely from the naked fact of nonpayment.” (Emphasis added.) People v. Ausley, 185 Colo. 256, 523 P.2d 460 (1974). The Idaho statute, according to its drafters, was modeled on that of North Carolina. Constitutional Convention, Vol. II, p. 1633. The Supreme Court of North Carolina, like that of Colorado, has repeatedly held that the mere “failure to pay is not sufficient evidence of an intent to defraud.” State v. McRae, 170 N.C. 712, 86 S.E. 1039, 1040 (1915). And see State v. Barbee, 187 N.C. 703, 122 S.E. 753 (1924); State v. Hill, 166 N.C. 298, 81 S.E. 408 (1914).
Thus there is no merit to the dissent’s allegation that the majority’s interpretation of the word “abscond” is based solely upon dictionary usage.2 As noted above, we could not constitutionally construe the word “abscond” so as to infer the specific “intent to defraud” from the “naked fact of nonpayment.” The context in which the word occurs serves to negate so lax a construction. I.C. § 18-3108 lists four types of conduct which, if proved, may serve as “prima facie proof of the fraudulent intent” required by I.C. § 18-3107:
1. that lodging, food or other accommodation was obtained by any false pretense;
*2882. or by any false or fictitious show or pretense of any baggage or other property;
3. or that any person absconded without paying or offering to pay for such food, lodging or other accommodation;
4. or that any such person surreptitiously removed, or attempted to remove, his or her baggage.
It bears emphasis that each of the four types of behavior listed above is a species of the kind of behavior outlawed in Chapter 31 of Title 18, namely, “False Pretenses, Cheats and Misrepresentations.”
It should be remembered further that this statute was passed in 1903. By consulting a dictionary of that era, one discovers that “surreptitious” was then accorded the meaning of “clandestine”; “clandestine,” in turn, was said to mean “kept secret”; and “abscond” meant “to depart secretly.” Thesaurus Dictionary of the English Language, 1910 edition. In short, “absconding” of the person and “surreptitious” removal of the baggage are all part and parcel of the same statute. Both are suggestive of exactly the same thing, namely, the attempt to exit in other than a noble and forthright manner. The old movies, usually comedies, are replete with scenes showing the extent to which persons would go in spoofing hotel operators into a vision of affluence, only later to depart by the fire escape in the dead of night, both absconding and surreptitiously removing their baggage.
All the lines of evidence converge. Regardless of whether one looks to the intent of the drafters of the Idaho Constitution, or to that of the drafters of the statutes, or to legal dictionaries, or to common understanding, one is forced to conclude that the term “absconding debtor” connotes stealth, furtive and clandestine conduct, secret and surreptitious behavior. To hold, as the dissenters would, that prima facie proof of a “fraudulent intent” can be present without the need to prove any of these elements is to eliminate the element of fraudulent intent entirely and to transform the crime into the naked fact of non-payment of a debt. To repeat: the Constitution of the State of Idaho forbids any such result. Idaho Const., art. 1, § 15.
A final word should be directed toward the question of “statutory presumptions” in the criminal area. Such a presumption is set up by I.C. § 18-3108 which states that proof of “absconding without paying or offering to pay for such food . . shall be prima facie proof of the fraudulent intent” necessary for conviction under I.C. § 18-3107. Justice Donaldson suggests that the proper interpretation of such a statutory presumption would be
“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).
The trial judge was apparently applying a similar standard when he rejected defendant DeVoe’s defenses of forgetfulness and of intoxication and stated instead:
I would merely point out under 18-3108 of the Idaho Code it does say that if you abscond without paying or offering to pay for the food, lodging or accommodations, that’s prima facie evidence of a fraudulent intent
It does appear to the Court you did leave without paying for it; that the State has made out a prima facie case; and I, therefore, feel that the Court is compelled to find you both guilty of fraudulent procurement of food in the amount of thirteen dollars and eighteen cents ($13.18).
Whatever “prima facie proof” means, it certainly cannot be construed to mean that in Idaho a criminal conviction can be obtained and then sustained simply because “the state has made out a prima facie case” by showing departure without paying. In an early case dealing with a similar innkeepers statute, the Pennsylvania Superior Court rebutted any such notion that statutory presumptions could ever displace the state’s obligation of proving every element of a crime beyond a reasonable doubt:
*289The burden of proof is not changed. It still remains on the Commonwealth; the statute only declares that certain acts therein specified shall be prima facie evidence of fraudulent intent; but the burden of proving the defendant guilty still remains on the Commonwealth.
Commonwealth v. Berryman, 72 Pa.Super. 479, 482 (1919). According to the Berryman court, the precise way in which a court gives effect to the legislative enumeration of certain acts of “prima facie proof” of fraud is as follows:
Evidence of the acts [is] sufficient to take the case to the jury on the question of fraudulent intent, but they may be open to explanation, and because such acts are testified to or proved at the trial does not per force render the defendant guilty under the act.
Id. at 483.
The present case, of course, was tried without a jury. It bears noting that it was also tried without counsel for the defendant. DeVoe’s companion argued that he failed to pay the bill because he saw the bill and some change in the tray on the table when they were ready to leave and thought it had already been paid. DeVoe’s own defense was that he was intoxicated and simply forgot the bill. DeVoe stated that he and his companion had met one another for the first time in many years and were celebrating, perhaps to excess, even before arriving at the restaurant. This account was reenforced by that of the security guard who volunteered the information that his attention was first drawn to DeVoe and his friend because “I have occasion to watch the people who come in that’s under the influence of alcohol.” It is also uncontradicted that in the hour and one-half during which DeVoe and his friend were at the restaurant, six more drinks were consumed, probably four of them by DeVoe. Finally, it was uncontradicted that DeVoe and his companion did not flee (did not “tennis shoe it,” as they put it) but were still just outside the restaurant premises some 5 to 15 minutes after their supposed “absconding.” Upon being apprehended, they immediately offered to pay the bill, which payment was refused by the restaurant on the grounds that the restaurant preferred to prosecute.3
In short, the prosecutor’s entire case was premised only upon the statutory presumption. We are asked to affirm the resulting conviction not because DeVoe’s guilt was determined to exist beyond a reasonable doubt, but rather because “the state has made out a prima facie case” by showing departure without paying. Whatever the law may be in Washington, I know of no instance where such a standard has ever before been applied by the Idaho Supreme Court. On the contrary, it has long been rejected when argued in contexts such as this:
So long as the evidence is of itself material and relevant, the statute may make it prima facie proof of the ultimate fact which it tends to establish, and may thus shift the burden of evidence. Where, however, there is no connection or rational relationship between the fact proved and the ultimate fact to be presumed, such a statute shifts the burden of proof, and in a criminal case deprives the defendant of the protection of his constitutional guaranties. (Emphasis supplied.)
State v. Grimmett, 33 Idaho 203, 209, 193 P. 380, 381 (1920). To reduce the act of “absconding” to that of mere “non-payment,” as the dissenters suggest, would be to strip it of those very elements — such as furtiveness, stealth, secrecy, clandestine and surreptitious behavior — which alone make it “material and relevant” to proving the ultimate fact of criminal intent to defraud at the time of obtaining food or lodging. To *290insist that a criminal defendant shoulder “the burden of showing an honest intent” whenever we deal with a statutory presumption would be to transform what should be at most a, burden of evidence, i. e., the burden of coming forward to explain otherwise suspicious behavior, into an almost insuperable burden of proof even in the absence of any suspicious behavior at all. Nearly 60 years ago, Grimmett dealt what should have been the death blow to that proposition:
“Such an arbitrary rule of evidence takes away from the defendant his constitutional rights and interferes with his guaranteed equality before the law; and as the supreme court of the United States says, ‘violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.’ (Bailey v. Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191, see, also, Rose’s U.S. Notes.) Mr. Justice Hughes, who delivered the opinion of the court, further says: ‘It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from the constitutional restrictions.’ ”
State v. Grimmett, 33 Idaho at 209-210, 193 P. at 382 (quoting from State v. Griffin, 154 N.C. 611, 70 S.E. 292)4 See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See generally Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880 (1968).
It may seem peculiar that a misdemeanor charge amounting to $13.18 serves to generate three separate and lengthy opinions. One cannot take it lightly, however, when the might and resources of the State are put into the service of mere collection agents and when the result is that a citizen must go through life with a criminal record. Further, it must be remembered that even the smallest criminal cases have frequently, in this country’s history, been the means of establishing some of our most profound constitutional protections. Small though this case may be, any decision other than that reached by the majority would amount to a giant step backwards in the criminal jurisprudence of Idaho.
. The record shows that the 23-minute hearing was consumed by court and counsel: Wagenius herself said “Yes” twice, “No” once and nodded her head once. Obviously she may or may not have displayed a remorseful countenance, and we have no way of knowing. May Heaven help the more stoic defendants who are brought before the court.
. There is also no merit to the dissent’s criticism of the majority opinion for allegedly requiring
the state to prove DeVoe “absconded” from the premises. This is explained to mean DeVoe must be shown to have secretly, clandestinely, surreptitiously left the restaurant.
If such criticism were justified, I would not be able to join in the majority opinion. As Justice Donaldson notes in his perceptive analysis of the statutory framework, I.C. § 18-3107 does not require proof of “absconding” at all. It requires only proof of “intent to defraud.” It is I.C. § 18-3108 which introduces the notion of “absconding” in order, as Justice Donaldson notes, “to give the state one way, but by no means the only way, to prove a violation of I.C. § 18-3107.” This insight is entirely correct. It is, however, fully respected by the majority opinion which does not hold that one must prove “absconding” in order to prove a violation of I.C. § 18-3107, but which focuses on the “absconding” issue only because the conviction in this case and, indeed, the prosecution’s entire presentation “was based upon the prima facie case resulting from the defendant’s alleged absconding.” As further proof that the majority is not unaware of other possible avenues of proof, it should be noted that, before reversing defendant DeVoe’s conviction, the majority adds that “[t]here is nothing else in the record from which the Court would be justified in finding the necessary element of fraudulent intent required by I.C. § 18-3107.”
. In the words of the trial court, “[I]f it’s their policy to prosecute, I certainly can’t condemn that and that’s not up to me to say anyway.” It is, of course, the prerogative of the restaurant to refuse payment and to press charges instead. (In fact, if the crime has already been committed, there should be no bar to accepting payment and pressing charges.) However, it is not the prerogative of the restaurant to determine who is and who is not to be prosecuted. The remark of the trial court betrays an unfortunate mind-set which, I hope, is not shared by the county prosecutor.
. The analysis in the text of State v. Grimmett, supra, demonstrates a method whereby one may give a constitutionally acceptable reading to I.C. § 18-3108. It is not presented, as Justice Donaldson suggests, to render the “death blow” to that statute or, by implication, to rule it unconstitutional.