Criminal Code of Procedure, sections 4018 and 4023 of the Code of Laws, 1912, the twenty-fifth rule of Court, and by the decided cases.

For accuracy of statement the panel of thirty-six jurors will be referred to as the original panel, and the panel of fifteen jurors will be referred to as the additional panel, for the statute describes them as "additional jurors."

There is no difference betwixt the character of the men on the two panels; there is no difference in the agency by which the names have heretofore been put into and drawn out of the "jury box;" there is no difference in the agency by which the members of each may be brought into Court; there is no difference in the manner by which each panel shall be presented to the accused on his trial. The only differences in the cases are these: One panel is put into the "jury box" and the other panel is put into the apartment of the jury box known as the "talles box;" one panel is summoned by a venire issued before term time and the other by a venire issued in term time.

Such a

Manifestly, it would not be lawful for a trial Court to proceed against objection to select a jury to try the accused out of the original panel, before the sheriff had exercised due diligence to summon all the jurors named in the venire, and before such jurors could have a chance to attend. procedure would open the door for an unfair trial; thereby only jurors well known to be friendly to one side or the other might be in attendance. The case is not altered, on principle, that the selection is to be made from the additional panel, although that panel is for the "convenient dispatch of business." The statute, moreover, provides that the "venire shall be served and returned," presumably before or at the appearance of the jurors.

We think the twenty-fifth rule of Court does not alter the case; to "draw one from the names of all the jurors in attendance" must mean in light of reason and the law,

Opinion of the Court.

[100 S. C. jurors in attendance or who have had notice to attend, and the chance to attend.

The case at bar illustrates the peril of proceeding to select jurors before the whole panel to be summoned has been served and has had a chance to appear.

We are mindful of the rule, long since enunciated, that the right to reject a juror does not include the right to select a jury. But in jury trials, like in most transactions of life, there is a lawful element of that which is called chance, for the lack of better name. With fifteen names in the hat, and a boy to draw, who can divine what may come out. If a name pleasing to the defendant he is entitled by the rule of Court and the chance to have it. And if a name menacing to the defendant, and his necessities shut him up to it, he must by the same rule and chance accept it.

We are mindful, too, of the practice of trial Courts for the dispatch of business to proceed to the selection of jurors before all those named in the additional venire have come into Court; but that practice ought to have, and under ordinary circumstances does have, the consent of counsel, except in a pinch like this.

The third issue must go against the State.

The defendant had testified to an interview with the deceased at a hotel on Sunday before the homicide, whereat deceased manifested a hostile and threatening attitude towards defendant. The State called Rickman and 3-7 Brunson as witnesses; they were not present at the interview, but talked with deceased a few minutes. thereafter. These witnesses detailed the declarations of deceased about the colloquy. These declarations had no reference to defendant's testimony about threats or a threatening attitude of deceased at the interview; they referred to what the deceased told defendant about the lewdness of his daughter with other men than himself. They were not admissible under the rule in Chaffin's case (56 S. C. 434,

33 S. E. 454), and they were both irrelevant and incompetent.

The third issue includes the defendant's objection 8-10 to the State's cross-examination of the father and the daughter. The objection is sustained.

The cross-examination of G. W. Tidwell covers thirtythree printed pages and that of Olive Tidwell covers twentythree printed pages.

Much of it was directed to an exposure of Olive's lewd life with other men; much of it was directed to an exposure of Mrs. Tidwell's lewd life with other men. There is high warrant for the belief that a father is most anxious about a prodigal child. That this child was lost in the ways of sin was no reason why she should be exposed to the contempt and ridicule of the jury; and was no reason why a father's solicitude about her should be dulled.

The character and life of the wife, Mrs. Tidwell, had no relevancy to the issues that were being tried; yet not only was the defendant closely questioned about his wife, but a witness, Woods, was produced to swear to his illicit intercourse with Mrs. Tidwell. The testimony was incompetent.

A witness, Bussey, testified to his illicit intercourse 6 with Olive, in contradiction to her denial of the fact. The testimony was irrelevant and incompetent. A witness, Gosnell, testified that Mary Walker, the negress proprietor of the bawdy house, had told him that. the deceased had not engaged the rooms at her house. This was to contradict Mary, who had sworn that deceased did engage the rooms. This testimony was irrelevant and

incompetent.

There is no need to further discuss the testimony, or to point with detail to the errors in it; they are mani11, 12 fest, for they infringe the plainest rules of evidence, and need not be suggested to guide in the next trial of the case.

Syllabus.

[100 S. C. It is sufficient to say that the testimony which has been referred to, and the cross-examination which has been recited, were sufficient to prejudice the defendant's cause, and were in denial of that fair trial to which he is entitled. The fourth issue must go against the defendant. Let the seventh request be reported. The true rule is, that he who

pleads unsoundness of mind in excuse for a homicide 13 must prove such unsoundness by a preponderance of the evidence, or by so much evidence as will raise a reasonable doubt about the defendant's guilt of the offense charged. State v. McIntosh, 39 S. C. 107, 17 S. E. 446. The judgment below is reversed, it is so ordered, and a new trial must be had.

9036

ATLANTIC COAST LINE R. R. CO v. DAWES.

(84 S. E. 830.)

RAILROADS. RIGHTS OF WAY. STATION AGENTS.

ROADMASTERS. DEC

LARATIONS. PLATS. EVIDENCE.

EVIDENCE. - A rule

1. RAILROADS - - STATION AGENTS DECLARATIONS that station agents shall have charge of buildings, sidings and grounds at their stations gives them no authority to act with reference to encroachments on the company's right of way, neither at such stations nor affecting their use, and the declarations of such agents with reference to such encroachments, not being within the scope of their authority, are inadmissible in evidence against the railroad company.

rule that

2. RAILROADS-ROADMASTERS-DECLARATIONS-EVIDENCE-A roadmasters shall familiarize themselves with the boundary lines of all company property and promptly report any encroachments upon the land of the company, does not vest him with authority to waive the company's rights to its property by his declarations with regard thereto, and his declarations with reference to such encroachments are inadmissible in evidence against the railroad company. 3. EVIDENCE-DECLARATIONS OF AGENT-AUTHORITY.-Where by the rules of a railroad company, its station agent was under no duty to report encroachments by abutting owners upon its right of way in a

suit by the road to recover possession of part of its right of way encroached upon by defendant, evidence was inadmissible contradicting the agent's denial that he had requested defendant to move her fence off the right of way, and that defendant denied it was misplaced.

4. RAILROADS RIGHT OF WAY-PLATS - EVIDENCE. It is error to exclude the testimony of a witness, who assisted in making a plat in. evidence, tending to show that it was made for a particular purpose, and was not accurate with regard to other matters shown thereon, as such testimony was material in determining the reliability of the plat as evidence upon the question at issue.

5. EVIDENCE-ADMISSIONS-MAP-EXPLANATION.-In a suit by plaintiff railroad to recover possession of a part of its right of way, alleged to have been encroached upon by defendant, where defendant offered in evidence a plat of plaintiff's right of way which had been put in evidence in a previous suit between plaintiff road and another party, and which showed that the right of way by the scale of the plat was less than claimed in suit by the plaintiff road, the explanation of the roadmaster of the road, who was present when the plat was drawn, who had procured data for it, and who knew the purpose for which it was made, that there had been no attempt to draw it to scale was improperly excluded from evidence.

6. EVIDENCE-ADMISSIONS-COUNTER DECLARATIONS.-Where, in an action by a railroad to recover possession of part of its right of way alleged to have been enroached upon, the defendant introduced in evidence a plat of the right of way used in a previous suit between the railroad and the township, it was error to exclude from evidence another plat of the right of way made earlier by a real estate agent of the company, dead at time of suit, proved to have been his by his handwriting, the second plat being a counter declaration to the first plat introduced by defendant; the purpose of the introduction of such plat being to show the location of plaintiff's right of way.

Before RICE, J., Sumter, April, 1912. Reversed.

Action to recover possession of real property brought by Atlantic Coast Line Railroad Company against Mary A. Dawes. From a judgment for defendant, plaintiff appeals. The facts, and exceptions, so far as material, are stated in the opinion.

Messrs. L. W. McLemore, Mark Reynolds and Purdy & Bland, for appellant. The latter submit: Testimony as