of way, and costs of construction, which shall be paid by said manufacturing or industrial enterprise: Provided, however, That after the railroad company, with whose line of railroad a manufacturing or industrial enterprise desires to connect, has procured the right or rights of way for the enterprise desiring to connect therewith, and shall have furnished to such enterprise the detailed statement, of the cost of the construction of the proposed side track, such enterprise shall have the option to build and construct the side track by it desired, on its own account, and in such event the railroad company, with which said side track is to connect, shall, in addition to procuring the right or rights of way for the said side track or side tracks, furnish and provide all necessary material in the manner herein required, for the construction of the said side track, and the enterprise so constructing its side track shall not be chargeable with the cost of construction by it done, and shall not to that extent be required to give bond: Provided, further, That before any railroad company shall be required to operate its cars over such track when so built, same shall have been first accepted by one or more of the Railroad Commissioners, and said Commissioners, one or more, are hereby required to inspect said side track within ten days after written notice that the same has been completed.

"Sec. 2. That the said railroad company shall each year refund and pay to the said enterprise, twenty per cent. (20 per cent.) of the revenue derived by it from freight received from and delivered to the said enterprise, until the entire cost paid by it for the construction of the said track shall have been refunded and repaid.

"Sec. 3. Upon receiving notice as herein provided that such track is required or desired, the said railroad shall forthwith proceed to have the proposed line surveyed and the cost of construction estimated, and furnish said enterprise with a detailed statement of the same within thirty (30) days after it has received said notice; and thereupon the said enterprise shall enter into the bond required by section 1, thereof, and upon receipt of the same, said railroad company shall proceed within ten (10) days thereafter to enter upon the construction of the said side track, which shall be completed without delay.

"Sec. 4. Any railroad company failing to comply with the requirements of this act shall be subject to a penalty of $10.00 per day for each day it fails to so comply, to be recovered in an action by any person, firm or corporation aggrieved, of the county in which the said enterprise is proposed to be located; one-half for the benefit of the party bringing said action and one-half for the benefit of the state of South Carolina.

"Sec. 5. Provided, If on application in this behalf the Railroad Commissioners shall decide that said side track shall not be 56 S.E.-3

placed, then the said railroad company shall not be required to build the same; Provided, however, That in such application to the said Railroad Commissioners, it shall be incumbent upon the railroad company resisting the construction of the proposed side track to show that the necessity for the construction of said connecting track or side track does not exist: Provided, further, That the Railroad Commissioners shall, and they are hereby, required to render their decision upon said application within thirty days from the date of said application.

"Sec. 6. This act shall go into effect Immediately upon approval by the Governor. "Approved the 4th day of March, A. D.

1905."

We will examine the exceptions in their order.

"(1) His honor committed error in holding that the act of the Legislature was unconstitutional and void and undertook to deprive railroad companies of their property without due process of law, contrary to the provisions of the fourteenth amendment of the United States, and contrary to the provision of article 1, section 5, of the Constitution of the state of South Carolina, the error being: (a) The act of the Legislature mentioned in the said complaint is an amendment to the charter of the defendant company. (b) The said act of the Legislature is a valid exercise of its police power, and his honor should have so held. (c) The said act of the Legislature is a valid exercise of the reserved power in the Legislature to alter, amend, or appeal the charters of all corporations at any time, and his honor should have so held. (d) Under the general power to control railroads, the Legislature of South Carolina has the right to declare that they shall maintain and operate certain in. dustrial side tracks and the act in question is a valid exercise of this power of the Legislature."

It will be well at this point to reproduce the text of the 14th amendment to the United States Constitution, as well as that of the fifth and seventeenth sections of article 1 of the state Constitution, because in this way we will have clearly before our minds the exact provisions of the federa! and state Constitutions on this subject: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law. Const. U. S. Amend. 14. Section 5, art. 1, of the state Constitution, provides: "The privileges and immunities of citizens of the state and of the United States, shall not be abridged; nor shall any person be deprived of life, liberty or property without due process of law; nor shall any person be denied the equal protection of the laws." While section 17, art. 1, of the state Constitution, provides: "Private

property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor." Thus, we see both by the federal and state Constitutions that full protection is herein provided against any infraction of the rights of citizens. This should be so. Any disregard of these constitutional provisions aims a death blow at the preservation of private rights, and it falls to the lot of the courts to uphold and protect these provisions of law. A corporation in the eyes of the law is a private individual so far as property rights are concerned. In this instance, the defendant railroad has already had measured to it under the law its right to maintain its property rights in its tracks, in its engines and other property, and its franchises laid out and measured and admitted. By this act of the Legislature it is sought to confer upon a private individual the right, within the distance of one-half mile, to require this railway company to connect its railway track with a private brickmill against the railway company's consent. It is required by this act that the railroad shall lay out a track from its line of railway to the brickmill of the plaintiff. It is true that the act provides that the plaintiff shall pay the cost of trackage, but this, every dollar of it, must be returned by the railroad to the owner of the brickmill in installments of 20 per cent. each for five successive years, thus taking from the railroad's pocket money which it has already earned. If this is not an infraction of law, what is it? Thus it violates the requirements of our federal and state Constitutions. While the Legislature is empowered to alter or amend the charter of the defendant, it is imperative upon it to respect the property of defendant under the guaranties of the Constitution in so doing. Subdivision (a), therefore, must be overruled.

(b) In the case for appeal, it is set forth as follows: "During the opening arguments of defendant's counsel in the demurrer, counsel for appellant stated to the court that he did not intend to argue that the act was a police regulation, and would not contend in his argument in reply that it could be sustained as such, and the question, therefore, was not argued by either side before the judge." This is a fatal objection to the ground of appeal as set forth in this subdivision, for thus it appears that the circuit judge has never passed upon this questionindeed, was expressly denied the right to do so by the appellant himself. This subdivision is overruled.

(c) No such right is guarantied by law to the plaintiff in regard to side tracks contemplated by the plaintiff, and, inasmuch as the act in question contravenes the constitutional rights of the defendant, we hold that the Legislature had no such power. This subdivision is dismissed.

"(2) His honor committed error in holding

that the said act seeks to take private property for private purposes without the consent of the owner, contrary to the provisions of article 1, § 17, of the Constitution of this state, the error being: (a) That the property of a railroad company is in no sense private property. It is impressed with a public use and the corporation itself is a quasi public corporation, created for governmental purposes only, over which the Legislature has at all times plenary power, and his honor erred in so holding." In the case of Moore v. Railroad, 38 S. C. 1, 24, 16 S. E. 781, this court laid down as follows: "That railroads are quasi corporations is admitted on all hands. They owe a duty to the public, and to a certain extent their control is under agencies devised by the public. A very good illustration of this fact may be found in our statutes in regulation of such corporations, yet the property of such corporations is private property ⚫ in order to enable these corporations to realize the means with which to answer this duty to the public, and at the same time to earn some return for the capital invested in such enterprises, tariffs of rates both for the transportation of persons and property are allowed to be fixed by such railroads." Thus we see that the property of such railroads is private property in the control of which in a certain measure the public is interested, but the annihilation or serious abridgment of such prlvate property is not given to the Legislature. This exception is overruled.

"(3) His honor erred in holding that the said act seeks to take private property for private purposes without first making compensation therefor, contrary to provisions of article 1, § 17, of the Constitution of this state, the error being: (a) That the question of eminent domain has no application whatever to the provisions of this act, and his honor erred in so holding. (b) The act does not undertake to take private property without compensation." We think that, under the act in question, the private property of defendant corporation is taken for a private purpose, and is, therefore, unconstitu tional. The act in question requires this defendant railway, at any place within onehalf mile of its track, to lay out side tracks, to do this it may be necessary to pass over with said side tracks the lands of others. Of course, the railroad has no right to lay its tracks upon the lands of others without following the requirements of law. Under the doctrine of eminent domain it generally lays these side tracks, but to do this it must obey the law as laid down in the statutes of this state. This may require the expenditure of sums of money, which sums are private property of the defendant corporation. Surely this is an admirable illustration of the dangers involved in the present act of the Legislature. This exception is overruled.

"(4) His honor erred in holding that the act in question was unconstitutional, null

4. SAME-APPEAL-HARMLESS ERRor. Evidence as to what witness had stated to a third person is harmless error, where the fact was admitted on the trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3139.] 5. WITNESSES-IMPEACHMENT.

The wife of accused may be contradicted by proof of a contrary statement to a third person as to the guilt of accused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1209.] 6. CRIMINAL LAW

tion 5, of the said act, the Railroad Commissioners are given full power to decide whether the said side track shall be placed or not, and the act merely enlarges the powers of the Railroad Commissioners to this extent. (c) The act is legislative declaration that the construction and operation of the said industrial side tracks is a public necessity, demanded by the public welfare of the state, and his honor should have so held and sustained the constitutionality of the said act." The points here involved have already been passed upon and need not be reconsidered. This exception and its subdivisions are overruled.

It is the judgment of this court that the judgment of the circuit court appealed from, be affirmed.

(75 S. C. 409)

STATE v. SANDERS et al. (Supreme Court of South Carolina. Nov. 28, 1906.)

1. CRIMINAL LAW-IRREGULARITIES IN TRIAL. Where, on trial for murder, it appears that a deputy sheriff went into the jury room to furnish the jury with pen and ink, and stated to a juror that he could send instructions by him as to his horse, and that some jurors went out of the room in charge of deputies for purposes of nature, but had no conversation about the case, and that the deputies were not sworn, but that the clerk and defendant's attorneys were in the courtroom constantly, the irregularities are immaterial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2048-2053.] 2. HOMICIDE-EVIDENCE.

On trial for murder, the coroner may testify as to inquiries he made, and what statements a witness for the state made in the presence of defendant, and that, with the consent of the defendant, he had him place his foot in a track at the scene of the homicide, which it fitted, and that he took the shoes of defendant while in jail, and put them in tracks near the dead body, and they corresponded. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, § 455.]

INSTRUCTIONS

REA

Where the court had pointed out to the jury its duty as to solving questions beyond reasonable doubt, an instruction that the court could not tell them to disregard any circumstance, but could only instruct them that the circumstances relied on by the solicitor must be proved by him so as to exclude any other reasonable hypothesis than that of guilt, was not erroneous, as leading the jury to believe that they could consider every circumstance, whether it was proven beyond a reasonable doubt or

not.

Where the judge and defendant's counsel have stated that defendant has been released on bond of $100, it was not prejudicial error to refuse to let defendant make such statement.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3146, 3147.]

Appeal from General Sessions Circuit Court of Chester County; F. B. Gary, Special Judge.

James Sanders and Arthur Whitener were convicted of murder, with recommendation to mercy, and appeal. Affirmed.

W. H. Newbold, for appellants. J. K. Henry, for the State.

POPE, C. J. The defendants were indicted for the murder of one Mack Anderson, and were tried and convicted in the court of general sessions for Chester county at the fall term, 1905, Special Judge F. B. Gary presiding. After the rendition of the verdict, a motion for a new trial was duly made on the grounds: (a) That the jury was exposed to outside influences, the sanctity of their room invaded by an outsider, that they separated without authority, and had talks with unauthorized persons, after being charged by the court, and before reaching a verdict. (b) That the evidence was insufficient to support the verdict-in fact, no evidence to sustain it. This motion was overruled by his honor, the presiding judge. After this mo tion was overruled, the defendants were sen. tenced, and they now appeal from the refusal of the motion for a new trial, and also upon the grounds that the circuit judge committed errors in his admission of testimony, and in his charge of the law.

We will now examine these alleged errors in their order.

"(1) It is respectfully submitted that his honor was in error in not granting a new trial on motion, (a) because it was shown conclusively that the trial jury were exposed to outside influences, the sanctity of their room invaded by an outsider who had a talk with them, and after the court, the solicitor, sheriff, and sworn deputy left the courthouse, the jury, while in charge of no one in particular, separated and had talks with other unauthorized persons after they were charged with the consideration of the case and before reaching a verdict." This is a very serious charge, and we have therefore bestowed careful attention to the affidavits and evidence in support of the same on both sides. Thus it appears that the deputy sheriff was directed by the clerk of court to furnish the jury with pen and ink, and in doing so he went into the jury room and placed the ink and pen on the table in said room, and remarked to one of the jurors that, if he wished to send information home as to the care of his horse, he could do so. No reference was made by said deputy to anything involved in the trial. While it would be well that all the details of a trial should be concluded in the jury room before the jury is called into the same to make up their verdict, the matters complained of are purely irregularities, and do not affect the validity of the verdict. If it had been shown that such deputy sheriff had made any reference to matters involved in the trial, it might have been good cause for a new trial, but such was not the case here. Also, when some of the jurors were carried, under the care of the sheriff's deputies, outside of the jury room by calls of nature, no request having been made of the circuit judge to permit the same, this was an irregularity merely, because it is not attempted to be shown that any conversation took place between the parties referring to the merits of the trial. The departure of the circuit judge, the solicitor, the sheriff, and deputy sheriff from the courtroom, while the jury were in their room, without the bailiffs being sworn to take charge of the jury, should have no serious effect, because the defendant's attorney and the clerk of court were at all times in the courthouse while the jury was in its room. That the bailiff at the door of the jury room was in conversation with the foreman of the jury cannot affect the question, for it transpired that the foreman was merely requesting the presence of the judge to receive the verdict of the jury. The clerk of court very properly rebuked the bailiff for any conversation with the foreman, and was informed, in consequence of such rebuke, that the jury was ready to render its verdict. Under these circumstances, we see no grounds for upsetting the action of the judge iu refusing this motion on these grounds. (b) The responsibility, in capital cases, is placed upon the presiding judge; but, this being a case of such magnitude to the de

fendants, we have read every word in tes timony, and are compelled to say that there was evidence sufficient to support the verdict. We therefore overrule this ground of the motion for a new trial.

"(2) That the court erred is respectfully submitted in permitting the state's witness Henry Gladden to testify, over objection, that he made inquiries near the scene of the killing who were the perpetrators? who were suspected? and that he was told they had the man and it was one of the defendants, and in permitting said witness to testify, over objection, as to all the testimony and statements made to them by Alex. James, another witness for the state, and that James' wife testified the same, because the same was hearsay and prejudicial to the defendants, and the statements of James, as testified to by the witness, were irrelevant to the issue, having no connection with the homicide, except to substantiate James' testimony indirectly as to the time of night when the Sanders party arrived home from town the night of the homicide, which James said was just before 9 o'clock, in contradiction of the time that the defendant Whitener said he was at Sanders' house that night." We may remark that when Henry Gladden, who was the coroner, and as such had conducted the investigation before the jury of inquest, was on the witness stand, he was asked to state fully and circumstantially the steps he had taken as coroner to unearth the perpetrator or perpetrators of this murder, and, without objection from the defendants, he had reached the point relating to the testimony of James and his wife. It was competent, because the statements testified by this witness, Gladden, related to statements made by James and his wife in the presence of defendants. The circuit judge was careful to say that these were circumstances that might be detailed in this way. We think that there was no error in this, because James and his wife were examined as witnesses themselves, and both defendants gave full testimony also.

"(3) It is respectfully submitted that the court was in error in permitting the state's witness Henry Gladden to testify, over objection, that he took defendant Whitener down in the pasture below where the body was found, and had him put his foot in a track, and that his idea in taking him down there was to see where he went along, be cause it was shown that Whitener was a prisoner at the time, and he was being required to make evidence against himself." It must be understood that all this occurred at the preliminary examination before the coroner. The "case" shows that Whitener made no objection to this, nor did he object on a similar application to compare his shoe with tracks while he was confined in jail. In a case of murder, such as here charged, it becomes necessary to use every legitimate means to reach the truth, and, where a per

son consents to have his shoes placed in a track, neither this court, nor any other court, should object. This ground of appeal is overruled.

"(4) It is respectfully submitted that the court was in error in permitting the witness Henry Gladden to testify, over objection, that he took the defendant's shoes from the jail and put them in tracks found near the dead body, and that they fit, and in not striking out, on motion, all testimony in regard to comparisons of the tracks made with said shoes, because the shoes were procured from the defendant under fraud and duress, and was in effect compelling the defendants to criminate themselves and make evidence against themselves, when the tracks were a material part of the state's case." Again, we repeat, that where parties do not object, when it is proposed to subject their shoes to measurements, it is too late to raise the objection on appeal. The "case" shows that the parties consented that their shoes should be so used as is set forth In this exception. This exception is overruled.

"(5) That the court erred in permitting the witness Henry Gladden to testify, over objection, that the road in front of James Sanders' house for 40 yards was so hard that a track could not be made, and that he could not track the defendant's track there because the ground was too hard for that, was a question for the jury, and was merely an opinion, and was incompetent on the part of the witness." We think the circuit judge was not in error here, because the witness had fully testified as to the condition of the soil before James Sanders' house, and it was one of those everyday matters upon which witnesses may give their opinions after stating the facts. This exception is overruled.

"(6) It is respectfully submitted that the court was in error in not permitting the defendant's counsel to ask the witness Henry Gladden, on cross-examination, that the defendants were released from custody, when first committed to jail, on a bond of $100 each. and in holding that it was not competent to prove that they were so released, becau

ause it was competent to show every move made in the case, and that the defendants had an opportunity to escape if they so desired, with only a small injury to their bondsmen." This exception has nothing to sustain it, because both the trial judge and attorneys for the defendants stated in open court before the jury, as a part of the trial, that both defendants had been released from custody by his honor, Judge Gage, upon their entering into a bond of $100, conditioned upon their attendance upon court as witnesses in this case. Therefore it was immaterial that the circuit judge held the testimony incompetent, because it had already been announced as a fact before the jury. This exception is overruled.

"(7) It is respectfully submitted that the

court was in error in permitting the witness Simon Gardner to testify, over objection, that he told his wife, when he got home and went to bed the night of the homicide, 'that he heard the deceased leaving his father's house now hollering,' because it was an opinion and incompetent." We are unable to see any value to the appellants in this exception. It is admitted on all sides that the deceased left his father's house late on the night of November 21, 1904. This exception is overruled.

"(8) It is respectfully submitted that the court was in error in permitting the witness Mary Gardner to testify in reply, over objection, that on the day of the inquest she heard Jane Sanders say to Mary Whitener 'that Jim did kill Mack Anderson, and he had no business telling that lie on her,' or words to that effect, (a) because it was not in reply to anything brought out by the defendants, and (b) because, the original question being irrelevant and answered only over objection, it was incompetent to so contradict the witness Jane Sanders." This exception is overruled, because the question was directed so as to affect the credibility of the witness Jane Sanders; she having denied making the remark attributed to her.

"(9) It is respectfully submitted that the court was in error in not striking out the testimony of Mary Gardner, contradicting the witness Jane Sanders, on motion, (a) because the time of the alleged statement was made at a different time from that testified to by Mary Gardner, and (b) because the original question was irrelevant." We do not understand this objection to arise on the record, and it is therefore overruled.

"(10) It is respectfully submitted that his honor erred in charging the jury: 'Now, if you find that the state has made out a prima facie case, or if you find that the state has not made out a prima facie case to your satisfaction beyond a reasonable doubt, then you need not go any further; but if you find that the state has fully made out a prima facie case to your satisfaction beyond a reasonable doubt, then you go a step further and ascertain whether or not the defendants have established their especial defense of an alibi' (a) because such instruction was misleading to the jury, and induced the be lief that the jury may convict the defendant on a probable case alone, if such probable case was made out to their satisfaction, beyond a reasonable doubt; (b) because such instruction shifted the burden of proof to the defendants, upon the state making out a probable case, provided the jury was satisfied beyond a reasonable doubt that such a showing had been made out by the state, whereas, the burden of proof never shifted to the defendants until the state had made out a case and established their guilt to the satisfaction of the jury, beyond a reasonable doubt." A careful review of the charge of the judge shows how careful he was to lay