(dissenting).
I do not agree with the majority opinion because the magistrate did not convict McCann for “rearranging existing litter,” but for “throwing litter” as prohibited by SDCL 34A-7-6.
Contrary to McCann’s position, the magistrate refused to read an additional provision into the statute dealing with the initiation of litter. The statute is clear that the crime of littering involves the act of discarding, throwing, etc., litter — without concern as to its origin. Littering and polluting on public lands is not a trivial matter, no matter what the degree.
Upon review of the magistrate’s decision, the circuit court found sufficient evidence to sustain the determination that SDCL 34A-7-6 had been violated. The facts are undisputed that McCann threw litter upon public land and thus breached the statute. Our review of these matters is limited to determining whether the court below was clearly erroneous, and this I cannot do. I would, therefore, affirm the conviction.