The defendant, Mary Godfrey, was charged with welfare fraud, contrary to 33 V.S.A. § 2581, in the amount of Six Hundred-and Eighty-four Dollars ($684.00). The offense charged took plаce between March 15, 1972, and July 1, 1972. Trial by court was held on November 15, 1972, befоre the District Court of Vermont, Unit No. 3, Franklin Circuit. On *630 December 6, 1972, the lower cоurt issued a judgment order finding the respondent guilty of the offense charged. She has taken her appeal from this judgment.
The evidence, taken in the light most favorable to the State, was that the respondent was marriеd to Irving Godfrey. On February 8, 1972, she applied for welfare benefits by executing a form “Application for Aid and Services” wherein she asserted that she was pregnant and that her husband was in detention by reason of being “AWOL”. Shе also certified and acknowledged that she would be required to rеport changes in household situations, including persons moving into her house, and that the giving of false or misleading information would subject her to prosecution for fraud.
On March 15, 1972, her husband, although still “AWOL”, came to live with respоndent and remained with respondent in their home "until July 1, 1972. During this period, she continued to receive welfare benefits. She did not report the presence of her husband, and, as a matter of fact, lied to the representative of the Department of Social Welfare conсerning his non-presence so she would continue to receive benefits.
The concluding finding was that the respondent fraudulently received monetary benefits from the Department of Social Welfare as the result of fraudulent statements made or information withheld.
The respondent raises two questions in this appeal. One claim is that the trial court’s findings are deficient in that they were inconsistent with the evidence with reference to the respondent’s intent to defraud the state of Vermont. She points out that the evidence is unrebutted that her intent was not to defraud the State because of her continuing belief that her husband was returning to the military authorities.
Criminal intent, to be sustained, is not the secret intent of the respondent but is determined by her conduct and attending circumstances during the period of the alleged fraud.
State
v.
Deso,
Tested by the above rule and by the further rule that the findings of the lower court must be affirmed if there is any crediblе evidence to support them, the findings must be affirmed.
Lane Construction Corp.
v.
State of Vermont and Highway Board,
*631 Respondent has not denied any of the findings of fact. She has only pointed out that there is unrеbutted evidence of her continuing belief that her husband was returning to North Carolina, from where he was “AWOL” from the United States Marine Corps. She was аlso in fear of bodily harm to herself if she reported her husband’s presеnce and she was in fear of bodily harm to her husband if the authorities were made aware pf his whereabouts prior to his voluntary return to North Carolina.
All this evidence is subjective and only discloses secret intent whiсh is not sufficient to overcome the findings of her conduct and surrounding cirсumstances. No error is shown.
The second claim is that the trial court еrred in ordering the respondent to make restitution in the amount of $684.00. The rеcord before us discloses that the sentence of the court was sixty days, suspended. However, she was placed on probation and ordered to pay restitution in the amount of $684.00.
This matter was discussed in the case of
State
v.
Benoit,
Judgment of conviction affirmed. The sentence imposed below is reversed and remanded with directions to the lower court to impose sentence upon the defendant in conformance with the statute and the views expressed in State v. Benoit.