This is an appeal from an order of the Circuit Court, Sixth Judicial Circuit, dated September 27, 1983, affirming a judgment and sentence for littering issued by the Magistrate Court, July 18, 1983. Appellant was sentenced to ten days in jail and fined $38.00 plus law enforcement training fund costs of $12.00. The circuit court suspended the jail sentence, but affirmed the fine. We reverse.
On July 7, 1983, Office^ Bob Prieksat, using a spotting scope, observed Clifford McCann pick up a can from a fishing dock, shake it, and throw it in the rocks. He was not observed drinking from the can or holding it prior to the time he picked it up. The can proved to be an “A & W Root Beer” can. The arresting officer observed an “A & W Root Beer” can on the backseat of appellant’s vehicle. At trial, appellant’s wife testified appellant could not drink soda pop because it contains caffeine, yet, on cross-examination, she testified he drank coffee. However, appellant indicated he only drank decaffeinated coffee. Appellant’s wife also testified that any pop cans in the car would have been from her consumption. A citation was issued for littering pursuant to SDCL 34A-7-61 (this state’s anti-littering statute), and a trial was held to the magistrate court.
McCann pleaded “not guilty,” alleging the can was on the dock before he arrived and that he merely moved it because it was in his way and hindered his fishing. Nevertheless, the law-trained magistrate found him guilty of the offense of littering, citing as a basis “that there is not an element of the offense regarding the origin of the litter, and I think the way the law reads, it is, in fact an offense to rearrange litter or to throw debris or garbage of any type, regardless of the origin, back onto the land." (Emphasis supplied mine.)
The circuit court, on appeal, affirmed the conviction, finding
that there was sufficient evidence to find that the defendant, by taking possession of the can and then throwing it down into the rocks, was sufficient action to violate SDCL 34A-7-6. Once Mr. McCann picked up the can, the same was in his possession, and by throwing it down onto the rocks, he has in fact violated the statute.
*204McCann submits his act in moving the pop can falls within the doctrine of de minimis non curat lex. “The law does not care for, or take notice of, very small or trifling matters.” Black’s Law Dictionary 482 (Rev. 4th ed. 1968). See Fenske Printing v. Brinkman, 349 N.W.2d 47, 48 (S.D.1984) (Henderson, J., specially concurring). We are inclined to agree-. As in the case of People v. Feldman, 73 Misc.2d 824, 342 N.Y.S.2d 956 (1973), wherein defendant was charged with littering for dropping two expended matches on the sidewalk, we conclude “the [present] charge is based on acts too trifling to warrant judicial condemnation.” Id., 342 N.Y.S.2d at 962. We hold that the magistrate and circuit courts erred in convicting McCann of rearranging litter. There was insufficient evidence, as a matter of law, to establish a substantive crime. Were we to follow the State’s advocacy to a logical conclusion, sundry traditional activity, altogether innocent in nature, would become criminal. This we cannot countenance. We hold that the purpose of the law is to prevent littering — not to require innocent parties who did not originate the litter, at criminal peril, to clean up the litter. We therefore reverse the conviction.
DUNN and MORGAN, JJ., concur. FOSHEIM, C.J., and WOLLMAN, J., dissent.. SDCL 34A-7-6 provides:
No person shall dump, deposit, drop, throw, discard, leave, cause or permit the dumping, depositing, dropping, throwing, discarding or leaving of litter upon any public or private property in this state, or upon or into any river, lake, pond, or other stream or body of water in this state, unless:
Subsections (1) through (5) not applicable.