of law or denying person the equal protection of the law. VII. His Honor erred in not overruling the judgment of the magistrate and in not dismissing the prosecution.

VIII. Because his Honor erred in finding that the defendant did publicly cry, show forth, or expose for sale twelve boxes of cigars of the value of $14.15 contained in defendant's show case and he should have overruled the judgment of the magistrate in holding that the defendant did publicly cry, show forth, or expose for sale the said quantity of cigars, and his Honor erred in dismissing defendant's appeal and in remanding the case to the magistrate for further proceedings.

Messrs. W. B. Knight and F. P. McGowan, for appellant.

Mr. Solicitor Cooper, for respondent.

March 13, 1915.

The opinion of the Court was delivered by MR. JUSTICE GAGE.

Conviction before a magistrate's Court for violation of the Sunday laws, as written in section 699 of the Criminal Code of Laws, 1912; appeal to the Circuit Court and the magistrate's judgment there affirmed; appeal here.

The appeal is totally without merit; the judgment below is manifestly right.

The defendant is a native of Greece; it does not appear if he is a citizen of the United States. If he is a citizen of the United States he ought to obey the laws of the State; if he is not a citizen of the United States he must obey the laws of this State.

The exiles and martyrs who first settled this territory fixed their character upon its laws; and those who now come hither must conform thereto, until at least, unhappily that character may be changed.

There are eight exceptions; but the appellant has argued upon only five, and four of those five involve issues under the State or Federal Constitutions. Let the exceptions be reported.

The following constitutional enactments are invoked: State: (1) Art. V, sec. 21, as to a magistrate's jurisdiction.

(2) Art. I, sec. 8, as to a forfeiture of estate. (3) Art. I, sec. 19, as to excessive fines.

(4) Art. I, sec. 5, as to due process of law.

(5) Art. I, sec. 4, as to establishment of religion. Federal: (6) Fourth amendment, as to unreasonable seizures.

(7) Fifth amendment, as to due process of law.

The appellant has cited no case and no text to sustain his exceptions about these constitutional enactments; he has simply thrown them in as drag nets, and we are disposed to take them out in like manner.

It is sufficient to say the second, third and sixth 1, 2, 3 cited enactments have no relevancy to the facts of the case at bar.

The seizure and forfeiture here was of twelve boxes of cigars, partially filled, aggregating 283 cigars, worth $14.15. The argument of counsel is that "if the magistrate could pronounce a forfeiture of twelve boxes he could, under the same modus operandi, forfeit one thousand boxes, a power void under the principle of reductio ad absurdum."

If there be an absurdity, it lies in the contention that the power to do a reasonable thing involves also the power to do an unreasonable thing.

The fourth and seventh enactments only save to a person the right to be brought into Court, and to have the 4 chance there to establish any fact which by the law of the land would protect him and his property. The statute in question, and the trial for its violation, does not impinge upon those constitutional enactments.

The fifth enactment has over and again been construed, and against the contention of the appellant. City v. Benjamin, 33 S. C. L. (2 Strob.) 521; Cain v. Daly, 74 5 S. C. 480; 55 S. E. 110; State v. James, 81 S. C. 198; 62 S. E. 214; 18 L. R. A. (N. S.) 295n.; 16

Ann. Cas. 277.

The first enactment has reference to a magistrate's jurisdiction; and the exact contention is, that in the case at bar

the magistrate went beyond the limit fixed by these 6 words of the Constitution, "jurisdiction (to be pre

scribed by the General Assembly) shall not extend to cases where the punishment exceeds a fine of $100.00 or imprisonment for sixty days." Const., art V, sec. 21.

At section 20 of the Criminal Code the General Assembly has fixed the jurisdiction of a magistrate in these words: "They shall have jurisdiction of all offenses which may be subject to the penalties of either fine or forfeiture not exceeding one hundred dollars," etc.

But the same chapter of the Criminal Code, which enacts the Sunday law, expressly confers on magistrates "power and authority to summon before him any person who shall offend *** and upon proof*** the said magistrate shall give a warrant *** to seize the said goods *** put on sale *** and to sell the same."

It has been held that the word "punishment," as used in the Constitution at art. V, sec. 21, does not include a 6 forfeiture, such, for instance, as that prescribed by section 699 of the Criminal Code, Sunday statute.

State v. Hunter, 79 S. C. 91, 60 S. E. 226.

That statute does not make the selling of goods on the "Lord's Day" a crime, punishable by fine or imprisonment; it directs the magistrate to proceed against the goods and

to forfeit them to the county; there is no punish7,8 ment of the vendor by fine or imprisonment imposed

by the statute; the vendor is not arrested upon a war

48

rant issued, he is "summoned" before the magistrate, judgment is in rem, and the person of the vendor goes free. The procedure is not that prescribed by section 28 of the Criminal Code.

The statute prescribed no other process or procedure by which the sale of goods on the "Lord's Day" may be stopped.

Unless a magistrate may proceed to do it, no officer may. That statute confers the jurisdiction, and the Constitution does not limit the jurisdiction; the jurisdiction is, therefore, lawful to be exercised.

The judgment of the Circuit Court is, therefore, affirmed.

9035

STATE v. TIDWELL.

(84 S. E. 778.)

CRIMINAL LAW.

JURORS.

SUMMONING AND IMPANELING.

HOMICIDE.

EVIDENCE. WITNESSES. CROSS-EXAMINATION.

1. JURY-SUMMONING JURORS-NONCOMPLIANCE WITH STATUTE.-Con-
ceding that Civ. Code 1912, sec. 4026, providing that jurors shall be
summoned "as provided by law," refers to Civ. Code 1902, sec. 2923,
providing that the sheriff shall summon each person drawn as juror
by reading to him the venire with his indorsement thereon of such
person having been drawn or by leaving at his place of abode a writ-
ten notification thereof and of the time and place of the sitting of
the Court, where the sheriff mailed a subpoena to each of the 36
men on the venire, 27 of whom acknowledged the receipt of the sub-
pœna and appeared in Court, and the sheriff also served as many of
the other 9 men as he could find by delivering the subpoena to them,
and one of them appeared, the failure to comply strictly with the
statute was not ground for quashing the venire, since while jurors
ought to be summoned in formal manner, and all named in the venire,
who can with reasonable diligence be found, ought to be summoned
and to attend, a formal summons is not necessary, if they attend.
2. JURY-ADDITIONAL JURORS-STATUTORY PROVISIONS.-Under Civ. Code
1912, sec. 4023, providing that nothing in that article shall prevent
the clerk of Court of Common Pleas from issuing venires for addi-
tional jurors in term time upon the order of the Court whenever it is

necessary for the convenient dispatch of its business, in which case the venire shall be served and returned and the jurors required to attend on such days as the Court shall direct, where the sheriff served by mail or in person all of the 36 men named in the original venire, the Court, after the original panel had been exhausted in a homicide case, was warranted in ordering the issuance of a venire for additional jurors.

3. JURY ADDITIONAL JURORS STATUTORY PROVISIONS "JURORS IN ATTENDANCE"-TALES BOX.-Under Cr. Code 1912, sec. 82, relative to peremptory challenges, Civ. Code 1912, sec. 4018, providing that the names on the jury list shall be written on separate ballots and placed in a jury box, which shall be kept securely locked, and that at the same time there shall be placed in a special apartment in such box, to be known as the "tales box," the names of not less than 100 nor more than 400 persons, whose names appear on the list as residing within five miles of the courthouse from which jurors shall be drawn to supply deficiencies arising from any cause of emergency during the sitting of the Court, section 4023 relative to issuing venires for additional jurors in term time, and Circuit Court rule 25 providing that in the impaneling of a jury in criminal cases, where the right of peremptory challenge is claimed and allowed, a child under 10 years of age shall draw one from the names of all the jurors in attendance, which one, having answered, shall be presented to the accused, and so on, until, in regular course, the panel be exhausted or a jury formed, where, upon the exhaustion of the regular panel in a homicide case, the Court directed the issuance of a venire for 15 additional jurors, it was error to call one of such additional jurors who happened to be present in Court without waiting until all of such additional jurors had been summoned and given a reasonable time to appear and without then drawing the names as provided in the rule, as "the jurors in attendance" within the rule means the jurors in attendance or who have had notice and a chance to attend.

4. CRIMINAL LAW-JURORS-SUMMONS TO ATTEND.-Where all of the men drawn as jurors and named in the venire, who could be found, were either served personally with notice, or acknowledge service by mail of notice, to attend as jurors, the irregularity in attempted service by mail is immaterial, not of substance, and does not invalidate the panel.

5. CRIMINAL LAW-JURORS-IMPANELING.--A juror should not be presented to the defendant in impaneling the jury in a criminal case, and the defendant required to exercise his right to challenge, before the sheriff has exercised due diligence to summon all the jurors named in the venire, and before such jurors could have a chance to attend. 6. HOMICIDE-EVIDENCE--DECLARATIONS OF DECEASED.-On a trial for homicide, where accused testified that, at an interview between him and deceased a few days before the homicide, deceased manifested a hostile and threatening attitude towards him, it was error to admit