Statement of the Case.

[100 S. C. evidence of deceased's declarations a few minutes after such interview as to things that occurred in the interview having no reference to his claimed threats or threatening attitude.

7. HOMICIDE-EVIDENCE-ADMISSIBILITY.--On a trial for killing a man claimed to have wronged accused's daughter, it was error to admit evidence and permit cross-examination of accused and his daughter as to the lewd life of the daughter and her stepmother, accused's wife, and their illicit intercourse with men other than deceased.

8. WITNESSES-CONTRADICTION-ADMISSIBILITY.-On a trial for killing a man as a result of a meeting between him, another man, and accused's wife and daughter at a bawdyhouse, the testimony of the proprietor of such house that deceased did not engage the rooms at her house was irrelevant and incompetent to contradict the daughter's testimony that he did engage the rooms.

A

9. CRIMINAL LAW HOMICIDE WITNESSES CROSS-EXAMINATION. cross-examination of a defendant, being tried for murder, while on the stand as a witness, upon collateral, immaterial and irrelevant matters, which prejudices the defendant's cause and tends to prevent a fair trial thereof, is reversible error.

10. CRIMINAL LAW -HOMICIDE — WITNESSES-Cross-EXAMINATION.—The cross-examination of the daughter of a defendant, on trial for murder upon collateral, immaterial and irrelevant matters, which exposed her to the contempt and ridicule of the jury, and prejudiced the defendant's cause and tended to prevent a fair trial thereof, is reversible error.

11. CRIMINAL LAW-HOMICIDE-WITNESSES-EVIDENCE.-The

contradic

tion of a witness as to an immaterial statement as to a collateral matter is both irrelevant and incompetent.

12. CRIMINAL LAW-HOMICIDE EVIDENCE.-The admission of irrelevant testimony which tends to prejudice the defendant's cause, and prevent a fair trial thereof, is reversible error.

13. HOMICIDE-PRESUMPTIONS AND BURDEN OF PROOF-INSANITY.-One who pleads unsoundness of mind in excuse of a homicide must prove such unsoundness by a preponderance of the evidence or by so much evidence as will raise a reasonable doubt about his guilt of the offense charged; and hence an instruction that while defendant was bound to prove, by a preponderance of the evidence, that he was of unsound mind, if upon a consideration of the entire testimony any reasonable doubt remained as to whether or not he was sane, he was entitled to an acquittal, was properly refused.

Before MAULDIN, J., Greenville, May, 1914. Reversed.

The defendant, G. W. Tidwell, being convicted for manslaughter, under an indictment for murder, appeals.

The seventh request to charge, which was refused, is as follows:

"7. That while it is true that the defendant must prove that he was of unsound mind at the time of the act in question by the preponderance of the evidence, yet it is also true that upon a consideration of the entire testimony in the case, the State's as well as the defendant's, if any reasonable doubt remains in the mind of the jury as to whether or not he was sane, then the defendant is entitled to a verdict of 'not guilty.''

The facts are stated in the opinion.

Messrs. James H. Price and Townes & Earle, for appellant, cite: As to improper cross-examination: 33 S. C. 592. Object of cross-examination: 12 Rich. 654; 83 S. C. 530; 98 S. C. 117. Question of seduction, etc., not an issue: 63 Cal. 288. A witness cannot be contradicted on a collateral matter: 76 S. C. 129; 55 S. C. 43; 88 S. C. 129; 89 S. C. 152. As to seventh request to charge: 39 S. C. 107. Fair trial prejudiced by improper cross-examination and admission of irrelevant and incompetent testimony: 27 So. 987; 99 S. W. 945; 63 Cal. 288; 63 Pac. 752, 755.

Mr. Solicitor Bonham, and Messrs. Cothran, Dean & Cothran, for respondent, cite: As to motion to quash venire. Harper 91; 3 Strob. 33; 26 S. C. 114; 73 S. C. 516. As to mode of presenting special venire: Code, secs. 4023, 4027; Rule C. C. 25. Admission of evidence: 56 S. C. 454.

March 15, 1915.

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

Verdict below for manslaughter; judgment, imprisonment at hard labor for twelve years; bail refused; appeal here by defendant for a new trial.

The defendant is a man past middle life and hitherto of excellent reputation; the deceased was a young man in the prime of life, and unmarried and of feigned chastity; the transaction arose out of the adulterous life of the deceased. the defendant's young daughter, seventeen years of age, and the vengeance of the father thereabout.

The deceased resided in Greenville, had lucrative employment there in the office of a cotton mill, and had good connections.

The defendant resided at Clinton and was a traveling newspaper canvasser; and his daughter lived there with him and her stepmother.

The deceased visited the girl at her Clinton home, and by her account, there first wronged her in her father's house, in December, 1913.

In the next month he wrote to her a letter which contained no suggestions of wrongdoing, but, on the contrary, expressed a tender affection for the girl. In the early months of 1914 the girl fell deep into the mire of sin, and her stepmother with her. They met by appointment the deceased and another man at a house of prostitution kept by a negress in the city of Greenville.

The father got news of the scandal, repaired to the scene. and sought an interview with the deceased, but with no satisfactory result. That interview was at a hotel on Sunday afternoon. On the Thursday following, which was the 12th of March, the defendant sought the deceased at the place of his employment, and shot him to death with a pistol. The conviction was unlawful, and there must be a new trial.

There are fifty exceptions, which were unnecessary, and much encumber the record. The defendant's counsel has grouped the fifty exceptions into sixteen, and the counsel for the State has stated the alleged errors under four heads. And there are really only four substantial issues, to wit: (1) Ought the first venire to have been quashed?

(2) Ought the juror, Rogers, to have been presented to the defendant before all the fifteen additional jurors had been summoned to appear and before there had elapsed a reasonable time for them to appear?

(3) Was incompetent testimony allowed? And this includes, was there improper cross-examination of the father and daughter?

(4) Was the defendant's seventh, and refused request, a right statement of the law?

These in their order. The first issue must go against the appellant. The venire first sent out by the clerk to the sheriff directed him to serve thirty-six men to sit as jurors.

1

The service was not made by a delivery into the hands of the thirty-six men of a subpoena to appear in Court; but the service was made "by mail," and that method consisted in sending the subpoena in a letter to the person, and also an acknowledgment of its receipt; which acknowledgment the person was expected to sign and return by mail to the sheriff.

Of the thirty-six men named in the venire twenty-seven signed the acknowledgment, returned the same to the sheriff, and appeared in Court to serve as jurors.

As many of the nine others as the sheriff could find were served by a delivery into their hands of the subpoena to appear. One of these appeared, so that twenty-eight men named in the venire were present in Court and eight were absent.

The sole contention is, that the sheriff summoned those twenty-seven men in an unlawful manner; that the direction of the statute to summon them "as provided by law" (Code of Laws of S. C., 1912, vol. I, sec. 4026), means the manner prescribed by the Code of Laws of S. C., 1902, sec. 2923. Granting that the sheriff ought to have followed the direction of the Code of 1902, which is not adjudged, his failure to do so was not of substance.

Opinion of the Court.

[100 S. C. The character of the men named in the venire is not challenged; the successive methods of their selection are not questioned. These are the essential things which dedicate men to jury service. It matters little how they get notice. to appear in Court, so they are fit and are rightly selected. They 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 all ought to attend; but a formal summons is not necessary, if they attend. State v. Crosby, 16 S. C. L. (Harper's Law), 91.

Out of the twenty-eight men who appeared, as many as eleven were presented to the defendant and sworn as jurors; the others all were challenged by the State or by the defendant, and that exhausted the panel.

The testimony shows that the sheriff served, either by mail or in person, all the thirty-six men named in the venire who could be found. The Court then was warranted to proceed under section 4023, vol. I, Code of Laws, 1912, to provide “additional jurors." Upon a proper order to do so, the clerk issued his venire for fifteen additional jurors to appear forthwith. But before the sheriff had "served and returned" the venire, one man specified in it, Rogers by name, who happened to be present in Court was called to the book.

At that instant the defendant had already exercised nine of his ten peremptory challenges; and he was obliged to accept or to reject the man, Rogers, and a rejection, which

he did, exhausted his peremptory challenges, so that 2-5 he was compelled to accept the next name drawn out. And out of this the second issue arises, and it must go against the State. The appellant objected that "it has not been shown to the Court that the fifteen who were drawn here served, and that these names were not put in the hat and the names drawn out so as to give us the opportunity of having the entire fifteen of the venire in Court." The question is governed by section 82 of the