(dissenting). The ground of reversal, as stated in the majority opinion, is “a total absence of any showing that appellant gave any such directions or that he in any wise connived at such act.” I am of the view that the evidence was sufficient to sustain the conviction. In State v. Korth, 38 S. D. 539, 162 N. W. 144, this court held that—
“The probative force of evidence tending to show design' or intention to do an act constitutes a circumstance which tends to connect the person having such design, or intention with having committed the act when it subsequently occurs. When one threatens to do an injury to another, and that or a similar injury afterwards happens, this furnishes ground! to presume that he who threatened) the act was the perpetrator.” etc.
The majority opinion seems to overlook the fact that the complaining witness testified at the trial that, at the time of the conversation with Mr. Bonine quoted in the majority opinion, he was acquainted with and recognized Mr. Bonine’s voice. In that conversation, Mr. Bonine stated:
“We .want to go through' on the section line, through your premises, through your grove down there to straighten out the line.”
The majority opinion seems to assume that this section line was a highway, and inferentially draws the conclusion that undter the statute the telephone company had the right to extend its lines along such highways. It requires no argument to demonstrate that all section lines are not highways, but only such as are practicable. Construing the act of Congress and the act of the territorial Legislature relating to public highways on section lines, in *235the case of Wells v. Pennington County, 2 S. D. 1, 48 N. W. 305, 39 Am. St. Rep. 758, this court held:
“The title to the land is not taken away. It is merely the right to pass over it and ruse it for roads and highways when found practicable. If not -so found by competent authority, the grantee of the government holds the lands divested of this right.”
Any such assumption in this case is also clearly rebutted by the fact that (Mr. Bonine found it necessary to ask permission of the complaining witness to go through his premises and through his grove for the purpose of straightening out the telephone line, and the witness refused to give such permission. This refusal was immediately followed Iby the threat of (Mr. Bonine that, “We will go -dawn and slash down your big trees.”' Certainly the complaining witness had no interest in any trees growing on a public highway, and it seems clear that the threat did not refer to trees upon any public highway, but upon premises belonging to the complaining witness. In addition to this, there is not the slightest ground in the evidence or the record for assuming that the defendant directed its employes to cut trees only along the section line, or that in following instructions they departed from the section line by mistake. On the contrary, if we are to indulge in any assumption whatever, it would be that the employes of the telephone company followed the instruction given them, and that they cut trees according to such directions. It is also suggested in the majority opinion that Bonine’si conversation with the prosecuting witness occurred after the trees had been out. The prosecuting witness testified! that the conversation occurred about- 3 o’clock in the afternoon, and that the foreman on his farm called him- up about 9 o’clock in the morning and told him 'the trees had .been' cut. The question- as to when this conversation occurred w-as properly- a matter for consideration of the jury under instructions not complained of here, and we cannot asume that they were in- error as to the proper inference of fact to be drawn from the whole evidence. The jury would be justified in assuming that Bonine knew -what was being done ini connection with the desired1 change in the telephone line under his charge, and that he would not as-lc permission' to cut trees along such line after the trees had been cut.
*236I think the evidence is sufficient to sustain a conviction, and that the judgment of the trial court should) be affirmed.
MfcCO'Y, J., concurs in the dissenting views of SMITH, J.