BAKES, Justice.
In this opinion we release our decision in two different appeals: No. 11988, State v. Wagenius; and No. 12070, State v. DeVoe. These appeals were consolidated because they present similar questions concerning withheld judgments in criminal proceedings.
[275]*275I In State v. Wagenius, No. 11988, the defendant appellant Janella Wagenius was originally charged with drawing a check over $25.00 with insufficient funds, a felony. She pleaded not guilty. After the district court set the case for trial, the information was amended to charge Wagenius with a misdemeanor check charge. Wagenius pleaded guilty to the amended information. Following a sentencing hearing, the district judge ordered that judgment and sentence be withheld for a period of two years upon the condition that the defendant be incarcerated in the Kootenai County jail for a period of thirty days and that she not violate any law during that two year period. Wagenius appealed to this Court from the imposition of that sentence. The state has moved to dismiss the appeal on the ground that the district court’s order withholding judgment is not an appealable order because it was not a “final judgment.”
II
In State v. DeVoe, No. 12070, the defendant appellant Craig DeVoe was charged with fraüdulent procurement of food. He was tried by a magistrate sitting without a jury. Following the presentation of evidence, the magistrate found that DeVoe was guilty of the offense charged, but withheld judgment and ordered DeVoe to pay a $75.00 fine and $7.50 court costs and serve two days in jail. The magistrate suspended $25.00 of the fine and one day of the jail sentence on the condition that DeVoe make restitution of $13.18. DeVoe appealed the magistrate’s order to the district court. The district court affirmed the magistrate’s order and DeVoe appealed to this Court. The issue concerning the appealability of the magistrate’s order in No. 12070 was ráised for the first time by this Court sua sponte at oral argument.
in
THE APPEALABILITY OF THE TRIAL COURTS’ ORDERS CONDITIONALLY WITHHOLDING JUDGMENT
The initial question presented is whether a defendant who has either pleaded guilty to or been found guilty of committing a crime may appeal as a matter of right from an order withholding judgment but nevertheless imposing criminal sanctions. At the time the appeals were taken, I.C. § 19-2803 (repealed 1977) set forth the district court orders from which a defendant in a criminal action may appeal to this Court as a matter of right. It provided:
“19-2803. APPEAL BY DEFENDANT. —An appeal may be taken by the defendant:
“1. From a final judgment of conviction. “2. From an order denying a motion for new trial.
“3. From any order made after judgment, affecting the substantial rights of the party. . . . ”1
These are the same orders from which a defendant before the magistrates division of the district court may appeal to the district court. I.C. § 1-2213; Criminal Appellate Rule 3. The language in Criminal Appellate Rule 3, listing orders appealable from the magistrates division to the district court is identical to the language in I.C. § 19-2803 (repealed 1977) listing the orders appealable from the district court to this Court. Therefore, we hold that their meanings are identical and that our construction of the term “final judgment of conviction” found in I.C. § 19-2803 (repealed 1977) is also applicable to that same term in Criminal Appellate Rule 3.
The state has argued that the district court order that Wagenius serve thirty days in the county jail as a condition of withheld judgment is not a “final judg[276]*276ment” under I.C. § 19-2803 (repealed 1977), and therefore not an appealable order. We disagree. An order withholding judgment, but imposing the criminal sanctions of payment of costs or a fine or incarceration, is a de facto judgment of conviction and thus an appealable order under the statute.2 From the standpoint of the defendant, the payment of costs or a fine or the service of a jail or prison term pursuant to an order withholding judgment is punishment indistinguishable from the payment of costs or fine or the service of a jail or prison term pursuant to a judgment of conviction. To hold that the former order is not appealable because it was given in a document captioned “withheld judgment” while the latter order is appealable because it was given in a document captioned “judgment of conviction” would elevate form over substance and would in effect authorize the lower courts to impose punishment based on a finding of guilt which could not be reviewed by appeal. Applying a more reasonable interpretation of the statute, we look at the practical effect of the orders and construe such orders imposing the payment of costs and a fine or incarceration to be final judgments of conviction, regardless of language in the order which states that no judgment has been rendered. Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). Cf. Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964); State v. McNichols, 62 Idaho 616, 115 P.2d 104 (1941). Therefore, the order issued in No. 11988 withholding judgment but sentencing Wagenius to a jail term, and the order issued in No. 12070 withholding judgment but ordering DeVoe to pay costs and a fine and to serve a jail term, were both final judgments of conviction for purposes of appeal.
IV
THE IMPOSITION OF SANCTIONS WITHOUT ENTRY OF A FORMAL JUDGMENT OF CONVICTION
The orders involved in these two cases were not judgments of conviction, but by their express terms were orders withholding judgment and promising the eventual dismissal of the case on the condition that the defendant comply with the terms of the orders. The order involved in No. 12070, State v. DeVoe, must be set aside, as we rule in Part II of this opinion, because the conviction upon which the order was based cannot be sustained. Nevertheless, No. 11988, State v. Wagenius, presents the issue whether the trial courts may impose penal sanctions as conditions of such withheld judgments. Our inquiry commences with I.C. § 19-101 which provides:
“19-101. LEGAL CONVICTION NECESSARY TO PUNISHMENT. — No person can be punished for a public offense except upon a legal conviction in a court having jurisdiction thereof.”
This statute was first enacted by the Idaho Territorial Legislature as part of the Criminal Practice Act of 1864. 1864 Idaho Sess. Laws, ch. 2, § 5, at 234. In that act the legislature first set forth the fundamental principles of criminal procedure in this state. I.C. § 18-109, also first enacted as part of the Criminal Practice Act of 1864, 1864 Idaho Sess.Laws, ch. 2, § 1, at 234, indicates the sanctions the legislature considered to be criminal punishment and which could not properly be imposed “except upon a legal conviction”:
“18-109. DEFINITION OF CRIME. — A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:
[277]*277“1.
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BAKES, Justice.
In this opinion we release our decision in two different appeals: No. 11988, State v. Wagenius; and No. 12070, State v. DeVoe. These appeals were consolidated because they present similar questions concerning withheld judgments in criminal proceedings.
[275]*275I In State v. Wagenius, No. 11988, the defendant appellant Janella Wagenius was originally charged with drawing a check over $25.00 with insufficient funds, a felony. She pleaded not guilty. After the district court set the case for trial, the information was amended to charge Wagenius with a misdemeanor check charge. Wagenius pleaded guilty to the amended information. Following a sentencing hearing, the district judge ordered that judgment and sentence be withheld for a period of two years upon the condition that the defendant be incarcerated in the Kootenai County jail for a period of thirty days and that she not violate any law during that two year period. Wagenius appealed to this Court from the imposition of that sentence. The state has moved to dismiss the appeal on the ground that the district court’s order withholding judgment is not an appealable order because it was not a “final judgment.”
II
In State v. DeVoe, No. 12070, the defendant appellant Craig DeVoe was charged with fraüdulent procurement of food. He was tried by a magistrate sitting without a jury. Following the presentation of evidence, the magistrate found that DeVoe was guilty of the offense charged, but withheld judgment and ordered DeVoe to pay a $75.00 fine and $7.50 court costs and serve two days in jail. The magistrate suspended $25.00 of the fine and one day of the jail sentence on the condition that DeVoe make restitution of $13.18. DeVoe appealed the magistrate’s order to the district court. The district court affirmed the magistrate’s order and DeVoe appealed to this Court. The issue concerning the appealability of the magistrate’s order in No. 12070 was ráised for the first time by this Court sua sponte at oral argument.
in
THE APPEALABILITY OF THE TRIAL COURTS’ ORDERS CONDITIONALLY WITHHOLDING JUDGMENT
The initial question presented is whether a defendant who has either pleaded guilty to or been found guilty of committing a crime may appeal as a matter of right from an order withholding judgment but nevertheless imposing criminal sanctions. At the time the appeals were taken, I.C. § 19-2803 (repealed 1977) set forth the district court orders from which a defendant in a criminal action may appeal to this Court as a matter of right. It provided:
“19-2803. APPEAL BY DEFENDANT. —An appeal may be taken by the defendant:
“1. From a final judgment of conviction. “2. From an order denying a motion for new trial.
“3. From any order made after judgment, affecting the substantial rights of the party. . . . ”1
These are the same orders from which a defendant before the magistrates division of the district court may appeal to the district court. I.C. § 1-2213; Criminal Appellate Rule 3. The language in Criminal Appellate Rule 3, listing orders appealable from the magistrates division to the district court is identical to the language in I.C. § 19-2803 (repealed 1977) listing the orders appealable from the district court to this Court. Therefore, we hold that their meanings are identical and that our construction of the term “final judgment of conviction” found in I.C. § 19-2803 (repealed 1977) is also applicable to that same term in Criminal Appellate Rule 3.
The state has argued that the district court order that Wagenius serve thirty days in the county jail as a condition of withheld judgment is not a “final judg[276]*276ment” under I.C. § 19-2803 (repealed 1977), and therefore not an appealable order. We disagree. An order withholding judgment, but imposing the criminal sanctions of payment of costs or a fine or incarceration, is a de facto judgment of conviction and thus an appealable order under the statute.2 From the standpoint of the defendant, the payment of costs or a fine or the service of a jail or prison term pursuant to an order withholding judgment is punishment indistinguishable from the payment of costs or fine or the service of a jail or prison term pursuant to a judgment of conviction. To hold that the former order is not appealable because it was given in a document captioned “withheld judgment” while the latter order is appealable because it was given in a document captioned “judgment of conviction” would elevate form over substance and would in effect authorize the lower courts to impose punishment based on a finding of guilt which could not be reviewed by appeal. Applying a more reasonable interpretation of the statute, we look at the practical effect of the orders and construe such orders imposing the payment of costs and a fine or incarceration to be final judgments of conviction, regardless of language in the order which states that no judgment has been rendered. Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943). Cf. Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964); State v. McNichols, 62 Idaho 616, 115 P.2d 104 (1941). Therefore, the order issued in No. 11988 withholding judgment but sentencing Wagenius to a jail term, and the order issued in No. 12070 withholding judgment but ordering DeVoe to pay costs and a fine and to serve a jail term, were both final judgments of conviction for purposes of appeal.
IV
THE IMPOSITION OF SANCTIONS WITHOUT ENTRY OF A FORMAL JUDGMENT OF CONVICTION
The orders involved in these two cases were not judgments of conviction, but by their express terms were orders withholding judgment and promising the eventual dismissal of the case on the condition that the defendant comply with the terms of the orders. The order involved in No. 12070, State v. DeVoe, must be set aside, as we rule in Part II of this opinion, because the conviction upon which the order was based cannot be sustained. Nevertheless, No. 11988, State v. Wagenius, presents the issue whether the trial courts may impose penal sanctions as conditions of such withheld judgments. Our inquiry commences with I.C. § 19-101 which provides:
“19-101. LEGAL CONVICTION NECESSARY TO PUNISHMENT. — No person can be punished for a public offense except upon a legal conviction in a court having jurisdiction thereof.”
This statute was first enacted by the Idaho Territorial Legislature as part of the Criminal Practice Act of 1864. 1864 Idaho Sess. Laws, ch. 2, § 5, at 234. In that act the legislature first set forth the fundamental principles of criminal procedure in this state. I.C. § 18-109, also first enacted as part of the Criminal Practice Act of 1864, 1864 Idaho Sess.Laws, ch. 2, § 1, at 234, indicates the sanctions the legislature considered to be criminal punishment and which could not properly be imposed “except upon a legal conviction”:
“18-109. DEFINITION OF CRIME. — A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:
[277]*277“1. Death.
“2. Imprisonment.
“3. Fine.
“4. Removal from office; or “5. Disqualification to hold and enjoy any office of honor, trust or profit in this state.”
Reading § 19-101 together with its companion, § 18-109, it is apparent that the legislature intended that neither death, imprisonment, fine nor removal or disqualification from office be imposed as punishment for a crime without there first being “a legal conviction” of that crime. We must decide whether I.C. § 19-101 prohibits the courts from imposing the criminal sanctions listed in I.C. § 18-109 when a court has not entered a judgment of conviction, but has withheld it pursuant to I.C. § 19-2601.
The word “conviction” is susceptible to two meanings — an ordinary or popular meaning which refers to the finding of guilt by plea or verdict, and a more technical meaning which refers to the final judgment entered on a plea or verdict of guilty. Vasquez v. Courtney, 272 Or. 477, 537 P.2d 536 (1975); State v. Hanna, 179 N.W.2d 503 (Iowa 1970). In the latter case conviction has not occurred until the judgment is entered by the court. In State v. O’Dell, 71 Idaho 64, 225 P.2d 1020 (1950), we stated:
“ ‘Convicted’ as ordinarily used in legal phraseology as indicating a particular phase of a criminal prosecution, includes the establishing of guilt whether by accused’s admission in open court by plea of guilty to the charges presented, or by a verdict or finding of a court or jury. “In a more technical, legal sense, conviction means the final conclusion of the prosecution against the accused, including the judgment and sentence rendered pursuant to a verdict or plea of guilty, and it is frequently used to denote the judgment or sentence. [Citations omitted]. A person, after plea of guilty or verdict, has been convicted when the court decrees that he is guilty.” Id. at 68, 225 P.2d at 1022.
The definition to be applied is not always uniform, but varies with the particular law or statute under consideration. Summerour v. Cartrett, 220 Ga. 31, 136 S.E.2d 724 (1964).
Our prior decisions have not been totally consistent and, for that matter, neither has the legislation upon which they were based. In Ex parte Medley, 73 Idaho 474, 253 P.2d 794 (1953), we stated:
“The statute [I.C. § 19-2601, authorizing the withholding of judgment] does not require that the court must first adjudicate the guilt of defendant. The obvious and commendable objective of the Act which seeks in a proper case to avoid the stigma of a judgment of conviction would be in major part defeated if the contention of petitioner is accepted. To withhold judgment after a plea of guilty protects the defendant at that time against the stigma of a conviction which may be forever avoided should the defendant conform to its terms and conditions. This creates, and rightfully so, a hope in the heart of the accused that he may ultimately be released under an order of probation without the stigma of a judgment of conviction. This is an incentive for complete rehabilitation and reform, one of the salutary objectives of the Act.” Id. at 479, 253 P.2d at 797. (Emphasis added).
We ruled in State v. Cliett, 96 Idaho 646, 534 P.2d 476 (1975), that a withheld judgment is not a conviction under I.C. § 9— 1209, which permits impeachment by proof of a felony conviction. We concluded in Cliett that “[w]here judgment has been withheld, as authorized by I.C. § 19-2601, judgment has not been entered; and it follows that there is no valid conviction which can be used for impeachment. See State v. Barwick, [94 Idaho 139, 483 P.2d 670 (1971)].” 96 Idaho at 649, 584 P.2d at 479. However, in State v. Chauncey, 97 Idaho 756, 554 P.2d 934 (1976), we held that for purposes of I.C. § 18-308, which provides for consecutive sentences “[w]hen any person is convicted of two (2) or more crimes before sentence has been imposed upon him for either . . .,” conviction occurs [278]*278when the defendant pleads guilty and that plea is accepted by the court. Accord State v. Lawrence, 98 Idaho 399, 565 P.2d 989 (1977). Cf. United States v. Locke, 409 F.Supp. 600 (D.Idaho 1976) (holding that a defendant subject to an Idaho District Court order conditionally withholding a judgment of conviction of burglary had been convicted of a felony for purposes of a federal statute prohibiting convicted felons from possessing firearms) aff’d 542 F.2d 800 (9th Cir. 1976).
In the earlier case of Franklin v. State, 87 Idaho 291, 392 P.2d 552 (1964), a plurality opinion joined only by two members of the Court concluded that incarceration could not be imposed as a condition of a withheld sentence and probation. However, that opinion appeared to be based upon an interpretation of I.C. § 19-2601, rather than I.C. §§ 19-101 and 18-109.
The opening sentence of I.C. § 19-2601 seems to contemplate that a “conviction” is a determination of guilt rather than a judgment or sentence:
“Whenever any person shall have been convicted, or enter a plea of guilty . the court in its discretion, may:
“3. Withhold judgment on such terms
Other statutes, although not models of clarity, tend to support this view. I.C. § 19-2305, which pertains to forms of general verdicts, provides that a verdict of guilty “imports a conviction.” I.C. § 19-2314, which pertains to the reconsideration of a verdict, refers to a “verdict of conviction.” I.C. § 19-2706 requires the court “at which a conviction for murder is had [to forward the governor] a statement of the conviction and judgment, and of the testimony given at trial.” These latter two statutes were also part of the Criminal Practice Act of 1864 which also included I.C. §§ 19-101 and 18-109. 1864 Idaho Sess.Laws, ch. 2, §§ 1, 5, 413-14 at 234 and 288.
We conclude that for purposes of I.C. § 19-101 conviction occurs when a verdict or plea of guilty is accepted by the court. Accordingly, where a verdict or plea of guilty has been accepted by the court but judgment on that plea or verdict has been withheld, § 19-101 does not preclude the imposition of criminal punishment, fines and imprisonment, as conditions of that withheld judgment.
But neither does § 19-101 authorize the imposition of criminal sanctions as a term of withheld judgments. For such authorization we must look to § 19-2601 which provides:
“19-2601. COMMUTATION, SUSPENSION, WITHHOLDING OF SENTENCE —PROBATION.—Whenever any person shall have been convicted, or enter a plea of guilty, in any district court of the state of Idaho, of or to any crime against the laws of the state, except those of treason or murder, the court in its discretion, may:
“1. Commute the sentence . . .; or “2. Suspend the execution of judgment . and place the defendant on probation under such terms and conditions as it deems necessary and expedient; or “3. Withhold judgment on such terms and for such time as it may prescribe and may place the defendant on probation; or “4. Suspend the execution of the judgment at any time during the first one hundred and twenty (120) days of a sentence to the custody of the state board of correction . . and place the defendant on probation under such terms and conditions as it deems necessary and expedient .
“5. If the crime involved is a felony and if judgment is withheld as provided in 3 above or if judgment and a sentence of custody to the state board of correction is suspended at the time of judgment in accordance with 2 above or as provided by 4 above and the court shall place the defendant upon probation, it shall be to the board of correction.
“6. If the crime involved is a misdemeanor, indictable or otherwise, or if the court should suspend any remaining portion of a jail sentence already commuted in accordance with 1 above, the court, if [279]*279it grants probation, may place the defendant on probation. . . . ”
The question raised is whether subsection 3, which provides that the court may “withhold judgment on such terms and for such time as it may prescribe and may place the defendant on probation” authorizes a trial court to impose punishment, fines or imprisonment, assess costs and require restitution as conditions of a withheld judgment. In dicta we previously considered this issue in Franklin v. State, supra. Because of the differences in the four separate opinions contained therein, that case is of limited guidance.3 In State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963), and State v. Sandoval, 92 Idaho 853, 452 P.2d 350 (1969), we considered sentences which had been suspended and the defendant placed on probation as authorized by § 19-2601(2), with imprisonment a condition of that probation and suspended sentence. Though we did not directly address the issue whether imprisonment may be imposed as a condition of a sentence suspended under § 19-2601(2), the authority to do so was not contested in those appeals.
We see no reason why the terms which the court may prescribe as conditions of a withheld judgment pursuant to subsection 3 should be more limited than the terms which the court may prescribe as conditions of a suspended sentence and judgment pursuant to subsection 2, which include fines and imprisonment. Under subsection 2 a judgment is entered but its execution is suspended. Under subsection 3 the judgment is not entered, but withheld. The introductory language in § 19-2601 states: “Whenever any person shall have been convicted, or enter a plea of guilty, . the court in its discretion, may . It is clear that the sentencing alternatives provided in § 19-2601 become available to the court after a person has been convicted by a verdict of guilty, or a plea of guilty has been entered.4 Whether judgment has been formally entered does not affect the availability of the sentencing alternatives provided in § 19-2601. However, entry of a judgment is required to implement some of the sentencing alternatives, particularly those provided in subsections 1, 2 and 4.
It is apparent from the broad language of § 19-2601 that the legislature intended the courts to have maximum flexibility to fashion the sentence most appropriate to the individual defendant. The statute therefore must be liberally construed. The ability to withhold a judgment and thereby spare the defendant, particularly a first time offender, the burden of a criminal record, and yet, to emphasize the seriousness of the defendant’s action by conditioning that withheld judgment on a period of incarceration or payment of a fine is certainly one of the many sentencing alternatives the legislature intended to be available to the courts. Likewise, the payment of court costs5 and restitution are also proper and often very useful conditions of with[280]*280held judgments and probation. Indeed, I.C.R. 32(d),6 which implements the court’s exercise of the authority granted by § 19-2601, specifically lists the payment of court costs, restitution and participation in self-education and rehabilitation programs as among the lawful provisions which may be conditions of withheld judgments and probations.
V
In No. 12070, State v. DeVoe, we are also presented with substantive questions of law as well as the procedural issues already discussed.
The magistrate found DeVoe guilty of a violation of I.C. § 18-3107, which provides in pertinent part:
“18-3107. FRAUDULENT PROCUREMENT OF FOOD, . . . — It shall be unlawful for any person to obtain food at any . . . restaurant . with intent to defraud the owner or keeper thereof by not paying for the same. . . . ”
I.C. § 18-3108 establishes the following presumption for proof of fraudulent intent:
“18-3108. PROOF OF FRAUDULENT INTENT IN PROCURING FOOD . — Proof that . . any person absconded without paying or offering to pay for such food . . . shall be prima facie proof of the fraudulent intent mentioned in the preceding section.”
At trial DeVoe admitted that he and a companion had left the restaurant without paying for the food and drinks they had ordered and consumed, but maintained that he had not intended to defraud the restaurant, but had merely forgotten to pay the bill, primarily because he had been intoxicated at the time. At the close of the testimony, the magistrate 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. I think the law is pretty clear on it that intoxication is no defense. It doesn’t appear to me apart from what I’ve heard here today 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.
“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 other accommodations, that’s prima facie evidence of a fraudulent intent. And it does appear to the Court that you did, even from your own admissions, leave without paying for it. Apparently your basis of defense was that you merely forgot and didn’t have the intent or that you were so intoxicated, you didn’t know what you were doing. However, I have to draw the question of intent from the circumstantial evidence and the facts as it appears to the Court.
“And, again, I don’t think intoxication under the law is any defense, and certainly 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 .
[281]*281“And, therefore I do feel beyond a reasonable doubt it has been shown that you did fraudulently procure the food and lodging and that you did abscond or leave without paying for it.”
It is clear from a reading of I.C. § 18-3107 that fraudulent intent is a necessary element of the crime with which the defendant is charged. I.C. § 18-3108 further provides that a prima facie case of fraudulent intent is made by “proof that any person absconded without paying or offering to pay for such food.” (Emphasis added.) Since the state’s case was based upon the prima facie case resulting from the defendant’s alleged absconding, the question which this appeal poses is whether or not there is any evidence in the record to support the trial court’s finding that the defendant “absconded.”
All of the dictionary definitions of “abscond” indicate that to abscond means to depart clandestinely, secretly, or surreptitiously. See Black’s Law Dictionary (4th ed. 1968); Webster’s New International Dictionary (3d ed.). It is not sufficient that the state prove merely that the defendant left the premises without paying. There must be some evidence, either direct or circumstantial, that the departure was secretive, clandestine, or surreptitious in order for it to constitute “absconding.” The record suggests that the magistrate may not have recognized this distinction when he stated, “I do feel beyond a reasonable doubt that it has been shown that you did fraudulently procure the food and lodging and that you did abscond or leave without paying for it.” (Emphasis added.) The appellant alleges that there is no evidence in the record to show that he “absconded,” i. e., that he left secretly, clandestinely or surreptitiously.
The entire case of the prosecution consisted of the testimony of the security guard who observed the defendant and his companion enter the restaurant in an “intoxicated condition” at approximately 11:00 p. m. and stay until roughly 1:45 a. m.
His testimony is not clear as to whether or not he observed them leave. On direct examination he stated,
“I observed these two gentlemen get up and walk out of the coffee shop and then proceed to walk out of the building itself.”
When asked if he followed them immediately, he said:
“No, I did not. The waitress came over and told me that they had left their ticket on the table. I went over and picked it up and followed them and caught them outside as they were proceeding to leave.”
However, in response to a later question by the prosecuting attorney in his direct examination as to whether or not he picked up the meal ticket as soon as the defendant and his companion left the table, he answered:
“No, I was doing—I was in the other part of the building at the time checking the bar and everything. And I came back in and the waitress told me that these two gentlemen had walked out on their ticket. So I went over there and got the ticket off the table and proceeded to get these gentlemen back inside.”
On cross examination by the defendant, who appeared pro se, the security guard testified:
“Q. You didn’t see us actually leave walking out of the building—from like over by the restaurant area?
“A. No, I did not.
“Q. So you wouldn’t be able to see that we were like running out of there or something like that?
“A. No, I didn’t cause—at the time the waitress said you just walked out.
“Q. And when we were outside, we didn’t try to run or take off, split up or divide .
“A. No, no, I didn’t.
“Q. And when you first called to us, it wasn’t like ‘You’re under arrest’. You just called and said ‘Come on back’ and we went back just to see what was going on or what was happening.
[282]*282“A. Right.”
The foregoing testimony is the only evidence relating to the manner in which the defendant and his companion left the restaurant. The question which we must decide is whether or not, based upon that evidence, the magistrate was justified in finding that the defendant “absconded” as we have defined that term above. We think not. There is nothing in that testimony which would justify a finding that what the defendant did was secretive, clandestine or surreptitious. Without such evidence the defendant’s conduct would not constitute “absconding” within the meaning of I.C. § 18-3108, and therefore there was no “prima facie case of fraudulent intent.” There 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. The magistrate’s finding that defendant DeVoe was guilty of violating I.C. § 18-3107 is not supported by the evidence and is therefore reversed. See State v. Erwin, 98 Idaho 736, 572 P.2d 170 (1977).
VI
In State v. Wagenius, No. 11988, the defendant also argues that the thirty day jail term in addition to the two years probation was excessive, considering her prior record, her age and the fact that she is the mother of a young child. The maximum penalty for the first conviction of issuing a check under $25 with insufficient funds is “imprisonment in the county jail for a term not exceeding six (6) months, or by a fine not exceeding $300 or by both such fine and imprisonment . . . I.C. § 18-3106(e). While on the record which we are reviewing a thirty day jail sentence might appear to be harsh, we do not have the benefit of personally viewing the defendant as the trial court did at the 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. Under such circumstances a short period of confinement could have a salutory effect on the defendant’s future obedience of the law. Until such time as technology permits the recording of all of the nuances of human behavior and emotion which transpire in the courtroom, our review and reversal of trial courts’ sentencing judgments will necessarily have to be limited to those cases in which from the record it clearly appears that the trial court abused its discretion. We cannot say that such an abuse occurred on this record.
Moreover, it is not certain that the defendant will actually serve the thirty day jail term. Pursuant to I.C.R. 35 the trial court may, in its discretion, reduce the sentence within 120 days following the trial court’s receipt of this Court’s affirmance. Accordingly, the trial court still has discretion to reduce or modify the sentence in light of changes which may have occurred while this appeal was pending and so as to accommodate the defendant’s family and employment responsibilities, if the trial court determines that the situation warrants such accommodation.
State v. DeVoe, No. 12070, is reversed, and State v. Wagenius, No. 11988, is affirmed.
SHEPARD, C. J., and DONALDSON, J., concur in Parts I, II, III, IV and VI.
McFADDEN, J., concurs in Parts I, II, III, V and VI.
BISTLINE, J., concurs in Parts I, II, III, IV and V.