State v. Bonine

170 N.W. 138, 41 S.D. 231, 1918 S.D. LEXIS 188

• Court: South Dakota Supreme Court
• Decided: December 31, 1918
• Docket: File No. 4422
• Status: Published

Opinions

POLLFY, J.

Appellant was convicted upon an information charging that, upon a given date, he willfully andi ¡maliciously committed trespass by cutting down and destroying timber standing upon a certain described quarter section of land 'belonging to thé complaining witness.

The appellant is the superintendent of a telephone company. The timber that is alleged to have (been cut was growing along a certain highway that ran across and along the land described in the information and was cut for the purpose of clearing a way for a telephone line. There is no direct evidence that appellant cut the timber in question, or that he directed the cutting thereof, or that he was present ¡when it was cut, or that he was ¡ini any wise connected with the cutting thereof; and1 the only indirect evidence of such cutting by appellant is a conversation alleged to have taken place between appellant and the complaining witness over the telephone, some time just before or just after the alleged trespass was committed. The complaining witness testified that, about the time of tire alleged trespass, he was called to the telephone by some person who said:

“This is Mr. Bonine, the superintendent of the Centerville Telephone Company. We want to go through) on the section line, through your premises, through your grove idlown there to straighten out the line. We have had some trouble with the line, and we want to go through on a straight line.”

The witness refused such permission, and the party at the other end of the line replied1:

“Oh, yes; for the accommodation' of the public, let us go through.”

The witness again refused permission, and the other party said:

“If that is the way that you think about it, we will go down and slash down your ¡big trees.”

It is contended by appellant that there is no competent evidence proving, or tending to prove, that he was ever upon the land of the complaining witness, or that he ordered or directed any other person to do any of the acts complained of. It will be noted that the alleged request made by appellant was for permission to go through the witness’ premises along a certain section line. While there is no direct evidence that there is a traveled road along said section line, it is assumed that the section line in question was a highway, and upon this question the trial court charged the jury that—

“The section line highways in this state are, iby law, 66 feet wide, that is, 33 feet on each side of the center line, so was the cutting', if any on Mr. Lee’s land, without the 33 feet from the center line? If .it was not, then you should acquit.”

[1, 2] That some timber was cut and) a telephone line constructed across the premises of the complaining witness is conceded, and that at one place such telephone line departed from the section line as much as 100 feet, is not disputed. Whether such timber was cut before or after the said telephone conversation is not at all clear, but the evidence very strongly indicates that it was cut before the conservation was had. Are these facts alone sufficient to sustain a conviction of willful trespass? In our opinion, they are not. In the first place, there is no evidence at all that the defendant in person was present when the trees were cut. Assuming that he directed emplo3res of the telephone company to clear out a telephone line, there is nothing to suggest that he directed them to vary such line from the section line. In the second place, if suich employes, in performing such labor, departed' from the section line by mistake, su'ch act would not constitute “willful” trespass. If they departed from the section line knowingly and intentionally and undter such circumstances as to constitute willful trespass, it would not make appellant guilty unless he in some way directed or connived at suth guilty act.

There being a total absence of any showing that appellant gave any such directions or that he in any wise connived at such act, he was not guilty, and the verdict should have been1 set aside.

The judgment and order appealed from are reversed.