in that it confers upon the board the absolute power to determine who and who shall not sell nursery stock within the state.

Ex parte Hawley, 22 S. D.

115 N. W. 93.

§ 3. The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state.

No person shall be compelled to attend or 'support any minister or place of worship against his consent nor shall any preference be given by law to any religious establishment, or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.

APPROPRIATIONS FOR SECTARIAN

SCHOOLS-PAYMENT OF STU

DENTS TUITION-VALIDITY OF CONTRACT.

Construing Art. 6, sec. 3, and Art. 8, sec. 16 it is held that these provisions of the Constitution were intended to be and are self-executing, and require no act of the legislature to become operative, but of themselves contro all legislation upon the subject of appropriating money or other property for "the benefit of" or "to aid" any sectarian school, society, or institution, and control and limit the powers of all state, county, and municipal officers in auditing or paying any such appropriation.

Synod of Dakota v. State, 2 S. D., 366, 50 N. W., 632.

§ 4. The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged.

§ 5. Every person may freely speak, write and publish, on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court. SLANDER-PRIVILEGED

ROR.

COMMUNICATION-CHARGE TO JURY-ER

Where, in an action for slander, the plea was that the statement was privileged, it was error for the court to assume to decide that the communication was not privileged; its duty being merely to direct the jury by stating to them what constitutes a privileged communication.

Ross v. Ward, 14 S. D., 240, 85 N. W., 182.

LIBEL EVIDENCE-RECORDS, ABSENCE OF.

In an action for libel, that where the evidence, including the alleged libel. was absent from the record, an instruction submitting to the jury the question whether the publication charged plaintiff with being prosecuted criminally, for embezzlement would be presumed proper, if it would be proper under any provable state of facts under the pleadings.

Myers v. Longstaff. 14 S. D., 98, 84 N. W., 234; See also Boucher v. Clark Publishing Co., 14 S. D., 72, 84 N. W. 237.

$ 6. The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three fourths of the jury in any court.

JURY TRIAL-STATUTES VIOLATING.

The charter of the city of Watertown (sections 25, 27), authorizing a police justice to try certain cases for violation of ordinance without a jury, and allowing an appeal in such cases only when imprisonment exceeding 10 days or a fine exceeding $20 is imposed, violates Const. Art. 6, § 6, and seetion 7.

Belatti v. Pierce, Police Justice, 8 S. D., 456, 66 N. W., 1088.

JURY TRIAL--PROBATE PROCEEDINGS.

Under Const. Art. 6. § 6. parties who petition for letters of administration had no constitutional right to a jury trial.

In re McCullan's Estate, 20 S. D., 498, 107 N. W., 681.

Under the provision of Art. 6, § 6, Rev. Code Civ. Proc. § 275, providing that in an action for the recovery of specified real or personal property trial by jury may be waived only with the assent of the court to the written consent of the parties filed with the clerk, or an oral stipulation made in open court and recorded in the minutes of the trial, the right to a trial by jury is not waived by defendant in an action at law for the recovery of personal property by moving for a directed verdict at the conclusion of plaintiff's evidence, where, after the denial of the motion, he introduces evidence suflicient to carry his case to the jury.

Albien v. Smith, 19 S. D., 421, 103 N. W., 655.

§ 7. In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

CONTEMPT-WITNESSES-STATUTORY PROVISIONS.

1. Neither the constitutional provision that "the right of trial by jury shall remain inviolate," nor that the accused shall be entitled "to meet the witnesses against him face to face," has application to summary proceedings to punish for contempt.

2.

That portion of section 13, c. 101, Laws 1890, which provides that "the affidavits upon which the attachment of contempt issues shall make a prima facie case for the state," is not unconstitutional, as being an encroachment of the legislative upon the judicial power.

3. Whether the law is unconstitutional, in that under it a defendant may be empelled to be a witness against himself, is not decided, for it is not claimed that defendant's rights were so violated, and it is a well-established rule of law that no one can take advantage of the unconstitutionality of any provision of a law who has no interest in, and is not affected by, such provision.

State v. Mitchell, 3 S. D., 223, 52 N. W., 1052.

INDICTMENT-SUFFICIENCY OF INTOXICANTS.

Under Section 7. Art. 6, the offense charged in an indictment must be set forth with sufficient certainty to enable the accused to prepare his defouse in advance of the trial, to enable the trial court to know that the accused is being tried upon the identical charge passed upon by the grand jury, and to enable the accused to plead his conviction or acquittal in bar of a second indictment.

2. An indictment which charges the offense as follows: "That F. B., late of said county, yeoman, on the 1st day of March, in the year of our Lord one thousand eight hundred and ninety-three, at the county of Beadle and State of South Dakota, with a force of arms then and there did willfully, wrongfully, and unlawfully sell intoxicating liquors, to be drank as a beverage, contrary to the statute in such case made and provided, and against the peace and dignity of the State of South Dakota."-is insufficient, in that it does not set out the nature and cause of the accusation with that degree of certainty required by Section 7. Art. 6, of the state Constitution.

State v. Burchard, 4 S. D., 448, 57 N. W., 491.

TRIAL-DELAY-DISCHARGE.

Const. Art. 6. § 7, entitles an accused to a speedy trial. Rev. Code Cr. Proc. § 630, declares that, if a defendant prosecuted for a public offense,

whose trial has not been postponed on his application, is not brought to trial at the next term of court in which the indictment or information is triable, the court must order the prosecution dismissed, unless no cause is shown to the contrary; and section 395 provides that, where the jury disagree, the cause may be again tried at the same or another term, as the court may direct. Held, that where accused was on bail, and after one disagreement applied for a change of judge, but took no steps to prevent the adjournment of his case for several terms, nor to procure an earlier retrial, he was not entitled to a discharge for delay.

State v. Lamphere, 20 S. D., 98, 104 N. W., 1038.

WITNESSES-NOTICE OF.

Sec. 7, does not require that notice be given to accused previous to the trial, of all witnesses who may be called by the state.

Rev. Code Cr. Proc. sec. 7, sub. div. 3, gives the accused the right to be confronted by the witnesses against him in the presence of the court; it was error to read from the stenographer's transcript the testimony on preliminary examination of the witness for the state who were then absent from the state.

State v. Heffernan et al., 22. S. D. APPEAL

RECORDS-COMPLAINT.

118 N. W., 1027.

1. A defendant is entitled, on appeal from a conviction before a justice on questions of both law and fact, to have all papers filed in the cause transmitted to the circuit court (Comp. Laws § 6182), and to the benefit of all legal questions raised on the pleadings in the justice court.

2. The sworn complaint required in all prosecutions before a justice (Comp. Laws, § 6147) is jurisdictional in all stages of the prosecution, and a defendant cannot be tried in the circuit court on an appeal on questions of both law and fact, unless such complaint has been certified up by the justice.

3. To hold that a court, in any stage of a criminal prosecution, may try and convict a defendant, without a semblance of such an accusation as the law expressly requires, would establish a precedent, unsanctioned by the statute, and at variance with his right, "to demand the nature and cause of the accusation against him, to have a copy thereof," as guaranteed by Section 7 of Article 6 of the Constitution of this state.

State v. Walker, 9 S. D., 438, 69 N. W., 586. WITNESSES-PROCESS TO SECURE.

One is entitled as a matter of right to the presence of his witnesses or every advantage of their presence, if their presence be procurable, and this necessarily includes adequate means to secure their presence or the advantages which would flow therefrom. Hence he is entitled, under reasonable regulations, to process for witnesses anywhere within the state, and to a reasonable opportunity to invoke the use of such process.

State v. Wilcox, 22 S. D.

115 N. W., 687. INDICTMENT, CONTAINS WHAT.

It is "the acts constituting the offense," not the conclusion of the pleader as to what crime such acts constitute, which is required. Facts are demanded. not conclusions of law, or obsolete technical phrases. The principal office of the indictment is to inform the accused of the "nature and cause of the accusation against him," to be thus informed being one of his most important constitutional rights. How can the required object be better attained than by stating the acts constituting the alleged offense "in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."

State ex rel. Kotillinic v. Swenson, 18 S. D., 202, 99 N. W., 1114.

TRIAL REMOVAL OF ACTION.

Comp. Laws, §§ 7312-7318, providing for the removal of a criminal action prosecuted by indictment, on the application of the state's attorney, from the court in which it is pending, if the offense charged be punishable with death or imprisonment in the penitentiary, where it appears that a fair and impartial trial cannot be had in such county or subdivision, violated Const. Art. 6, § 7.

In re Nelson, 19 S. D., 215, 102 N. W., 885.

INDICTMENT-JOINT CHARGE-CONVICTION.

Under an indictment charging an illegal sale of intoxicating liquor to several persons jointly, defendant cannot be convicted of an illegal sale to but one of the persons named.

State v. Williams, 20 S. D., 492, 107 N. W., 830.

§ 8. All persons shall be bailable by sufficient sureties, except for capital offenses when proof is evident or presumption great. The privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it.

BAIL CAPITAL OFFENSES-EVIDENT PROOF AS GREAT PRESUMTION -BURDEN OF PROOF.

1. Under Const. Art. 6, § 8, persons arrested for capital offenses, where the proof is not evident or the presumption great, are entitled to bail as a matter of right, and Rev. Code Cr. Proc. §§ 585, 586, providing that bail may be admitted upon all arrests for criminal offenses punishable by death unless the proof is evident or the presumption great, but shall be taken only by the Supreme Court or circuit court or a justice or judge thereof "who shall exercise their discretion therein," is in conflict with the constitutional provision.

2. Under Const. Art. 6, § 8, and Rev. Code Cr. Proc. § 585, 586, containing substantially the same provisions, and section 356, providing that defendant in a criminal case is presumed to be innocent, the burden is on the state in an application for bail, to show that the proof is evident or the presumption great.

State v. Kauffman, 20 S. D., 620; 108 N. W., 246.

§ 9. No person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense.

EVIDENCE-ADMISSIONS.

The admission of a letter written by accused while in jail, to his father and mother, and delivered unsealed to the sheriff for mailing, containing an implied admission of his participation in the crime with which he was charged, was not objectionable as violating Const. Art. 6, § 9.

State v. Vay, 21 S. D., 612, 114 N. W., 719.

CONVICTION, REVERSAL OF JUDGMENT-ERROR.

When a defendant in a criminal action is convicted of the crime charged, and subsequently, on writ of error sued out by himself, procured in this court a reversal of the judgment of conviction, for errors in the charge of the trial court to the jury, he is not entitled to be discharged on the ground that he has once been put in jeopardy.

State v. Reddington, 8 S. D., 315; 66 N. W., 465.

RAPE-FORMER JEOPARDY.

Defendant was convicted of rape on a female under the age of 16 years, and application for a new trial was denied; but inasmuch as the evidence showed that the female was more than 16 years old at the time when the offense was alleged to have been committed, the court on its own motion arrested the judgment, and ordered defendant to be held in custody for 10 days, during which period a second information was filed against him, charging the same offense,

with the exception that the date of the commission of the offense was earlier. Held, that a plea of former jeopardy should be sustained.

State v. Adams, 11 S. D., 431, 78 N. W., 353; See also State v. Caddy, 5. S. D. 167. § 10. No person shall be held for a criminal offense unless on the presentment or indictment of the grand jury, or information of the public prosecutor. except in cases of impeachment, in cases cognizable by county courts, by jus tices of the peace, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger. Provided, that the grand jury may be modified or abolished by law.

STATUTES

SEDUCTION-EVIDENCE-PROMISE OF MARRIAGE.

1. Laws 1895, Chap. 64, authorizing the several courts of the state "to hear, try and determine prosecutions upon information, for crimes, misdemeanors and offenses" theretofore triable on indictment only, embraces but a single subject, and is not in violation of Const., Art. 3, Sec. 21, Chap. 64, Laws 1895 is within Const. Art. 6, Sec. 10.

3. On trial for seduction it appeared that defendant first met the prosecuting witness late in the year 1894; that he frequently escorted her to places of public worship and social entertainments, and informed her that he was keeping company with no other young lady; that they had associated thus to the last of February, 1895, when accused temporarily left the state; that during his absence for five months the prosecuting witness had no other male attendant; and that upon his return to the state accused renewed his attentions, and soon afterwards accomplished her ruin. Held; that the corroborating evidence was sufficient to sustain the verdict that the offense was accomplished under a promise of marriage.

State v. Ayres, 8 S. D., 516, 67 N. W., 611.

§ 11. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized. $ 12. No er post facto law, or law impairing the obligation of contracts or making any irrevocable grant or privilege, franchise or immunity, shall be passed.

STATUTES-INSURANCE-CONTRACT.

1. Laws 1895, Chap. 89, declaring that the avails of any policy of insurance, "heretofore or hereafter issued upon the life of any person," payable to the estate of the insured, etc., "shall, if the insured at the time of death reside or resided in this state, and leave or left a surviving widow or minor child," to an amount not exceeding $5,000, inure to the separate use of the widow or husband or minor children, independently of the creditors of deceased, conflicts with Const. U. S. Art. 1, Sec. 10, providing that no state shall pass any law impairing the obligation of contracts, and also with Const. Art. 6, Sec. 12, containing, in substance and effect, the same provision.

2. The act of 1895, in so far as it relates to antecedent transactions, being retroactive is inoperative and void.

Skinner v. Holt, et al., 9 S. D., 427, 69 N. W. 595.

TAXATION-ASSESSMENT.

The Laws of 1899, p. 44, c. 41, which provide that, the total county tax rate shall not exceed eight mills on the dollar for all purposes violates Art. 6, sec 12.

Fremont, E. & M. V. R. Co. v. Pennington County et al., 20 S. D., 270, 116 N. W. 75. § 13. Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken. No benefit which may aecrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or dam