¶1 On Rehearing. After the foregoing opinion was filed the defendant moved for a rehearing.
¶2 I. The witness who testified to a threat by the defendant and was then permitted to testify that he later reported the threat to the police, was also allowed to testify that he first reported the threat to his lawyer after the defendant’s arrest and that he gave *268 the report to the police as the result of his lawyer’s advice. The motion presents the claim that the evidence of telling the lawyer what the defendant said to him was incompetent, although the evidence of the report to the police is held competent.
¶3 The evidence of the report to the lawyer was competent on the same ground as that of the report to the police. Like the latter report, it was an incident, proof of which helped to verify the direct evidence of the threat. It was a proper and normal course to take that the witness should bring the threat to his lawyer’s attention in discussion about the defendant’s arrest. Disclosure of his knowledge to his lawyer and acting on the advice he received to inform the police of the threat were so directly connected with the report to the police that they formed a part of the entire incident. Both in that aspect and as a distinct matter the evidence of disclosure to the lawyer was as competent as that of informing the police. As conduct of circumstantial character it had some tendency to prove the truth of his direct evidence of the threat.
¶4 II. Since the jury presumably acted on the court’s instructions and hence presumably disregarded the misstatement of the evidence, the conclusion follows that no unfairness of trial probably resulted from the misstatement. It follows that a finding of fairness is unnecessary. The State had no burden to show that the jury’s duty was performed when non-performance was only conjectural.
¶5 Former result affirmed.