spring term. The Court, after hearing the affidavits and argument, simply refused the motion "on the authority of State v. Rhodes, 44 S. C. 328 (21 S. E. 807, 22 S. E. 306)."

There are five exceptions, but there is only one question, and the appellant argued only one question. That question is, was there abuse of his discretion by the Circuit Judge? The defendants "were convicted principally on the testimony of Eddie Izlar, a small negro boy, who swore that he saw the defendants go to the buggy of * * * Atterberry and put their hand in the buggy and take something therefrom that looked like a satchel." This appears from the affidavit of the appellant's attorney.

The defendants offered the Circuit Judge an affidavit of one Washington, who swears that after the trial, Izlar told him that he (Izlar) did not see and could not have seen the defendants take the money. It also appears from the affidavits of appellants' attorney that Izlar was also charged at the outset with stealing the money; but he was released and testified for the State. This recital is sufficient of itself to sustain the Circuit Judge's order.

The only testimony offered by the defendants is hearsay; Washington swears Izlar told him. That is no testimony at all.

There is no room to sustain the allegations of the fourth exception that "his Honor did not pass on the testimony at all." The order recites that the motion was refused "after hearing the affidavits and Jas. E. Davis for the motion."

The Judge was right to refuse the motion upon the authority of the Rhodes case, and without the authority of that case. True, the facts of the two cases are not identi

cal; but they are not unlike.

The appellant, though, relies, for the relief he asks, upon the recent case of State v. Bethune, 104 S. C. 353, 89 S. E. 153. The new trial there ordered was for reasons totally different from any which are suggested in the instant case.

In the Bethune case, involving the life of a man, the contrary declaration was made before the trial, and to the State's assistant counsel. We hold that the assistant State's counsel ought to have divulged that statement to the State's counsel. The Chief Justice expressly put the case "upon a different footing" from that of the ordinary witness.

Our judgment is that the order below be affirmed; it is so ordered.

9583

STATE v. PERRY ET AL.

(91 S. E. 300.)

1. CRIMINAL LAW-ADMISSIONS OR CONFESSIONS-TESTIMONY AT CORONER'S INQUEST.-Testimony of one when examined before a coroner's jury cannot be used against him on a subsequent prosecution for the homicide, as this would be to require him to furnish testimony against himself; any admission or confession in such testimony not being free and voluntary.

2. CRIMINAL LAW-HARMLESS ERROR-ADMISSION OF EVIDENCE.-Error in admission against defendant in homicide of his testimony at the coroner's inquest is not harmless because of evidence of a similar declaration by him elsewhere.

Before MAULDIN, J., Sumter, November, 1915. Reversed.

Lorenza Perry, Jr., being indicted, with another, for murder, and convicted, appeals.

Mr. John H. Clifton, for appellant.

Mr. L. D. Jennings, for respondent.

February 8, 1917.

The opinion of the Court was delivered by MR. Justice WATTS.

19-S.C.-106

Opinion of the Court.

[ 106 S. C. The defendant was indicted and convicted of murder with a recommendation to mercy before his Honor, Judge Mauldin, and a jury, at the November term of Court, 1915. After sentence, the defendant appeals, and by 18 exceptions imputes error on the part of his Honor. At the hearing in this Court, exception 3 was abandoned. Exceptions 5 and 10 raise the same question.

Exception 5 is:

His Honor erred in allowing the witness, J. B. Britton, when first on the stand, to testify as to a statement made by the defendant, Perry, after he had been sworn and examined at the coroner's inquest, as to when he had gone to bed on the night of the killing, in that, if permissible at all, the coroner's testimony would have been the best evidence, and further that the defendant being charged that any statement made under oath by him was not voluntary and could not be used against him.

Exception 10 is:

That his Honor erred in permitting the State to crossexamine the defendant, Perry, over the objection of defendant's counsel, as to what he had said before the coroner, under oath, he being subsequently charged by the coroner's jury, his testimony there having not been free and voluntary, but he having been called and put under oath and made to testify.

These exceptions must be sustained under the authority of State v. Senn, 32 S. C. 392, 402, 11 S. E. 292, 1, 2 and State v. Tapp, 105 S. C. 54, 89 S. E. 394 (Sept. 26, 1916). In the latter case, Chief Justice Gary,

in his opinion, says:

"The first exception, assigning the admission of this testimony as error, must be sustained under the authority of State v. Senn, 32 S. C. 392, 402, 11 S. E. 292, 297. In that case, Justice McIver, speaking for the majority of the Court, said: 'It is essential to the admissibility of the admissions or confessions of a party charged with crime that

they should be free and voluntary. Now, when a person, though not at the time charged, or even suspected, of the crime, is summoned before a coroner's inquest and compelled to testify (for the law does compel persons so summoned to testify), I do not see how such testimony can be regarded as such a free and voluntary statement as would justify receiving it in evidence, when the person so testifying is afterwards charged with the crime. It is true that, when examined as a witness, he may decline to make any statement tending to incriminate himself, but the moment he does so he at once excites suspicion of his guilt, or he may not know at the time what effect his testimony may afterwards have. It seems to me, therefore, that the only way to preserve in its integrity the well-settled rule that a person cannot be required to furnish testimony against himself, is to hold that, if examined before a coroner's jury or a committing magistrate, the testimony which he is then required to give cannot be used against him in a prosecution subsequently brought against him.'

"The State contends that the error was harmless, because the State proved substantially the same declarations made by the defendants to other witnesses before they were examined at the inquest. While such declarations made to others, freely and voluntarily, before or after examination at the inquest, are admissible, we cannot say that the error was not prejudicial, because the jury may have given greater weight to that testimony which was taken down in writing, and signed by the defendants under oath, than to their statements preserved only by the memory of witnesses Besides, their statements as testified to by the State's witnesses were not precisely the same as those made under oath at the inquest. There are differences which might have appeared to the jury as material; especially as the State relied on circumstantial evidence in part to secure a conviction."

There must be a new trial on these exceptions, and it is unnecessary to consider the other exceptions.

Judgment reversed, and case remanded for a new trial.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES Fraser and GAGE concur in the opinion of the Court. MR. JUSTICE HYDRICK did not participate in the consideration of this

case.

9584

WATERLOO SCHOOL DIST. NO. 14 v. CROSS HILL SCHOOL DIST. NO. 6.

(91 S. E. 257.)

1. SCHOOLS AND SCHOOL DISTRICTS-CHANGE OF BOUNDARIES.-Const., art. XI, sec. 5, provides that the General Assembly shall provide for the division of counties into suitable school districts, but that the present division shall remain until changed by the General Assembly. School act 1896 (22 St. at Large, p. 161), sec. 31, provides that the county boards of education shall divide their counties into convenient school districts, but that the present division of the counties into school districts shall remain until changed by the county boards of education. Sec. 62 of that act provides that nothing in the act shall be construed to repeal the acts of the General Assembly creating special and graded school districts. In 1900 (23 St. at Large, p. 360), said sec. 31 was amended so as to authorize county boards of education to divide their counties into convenient school districts and to alter the lines thereof, and create additional school districts, etc. Held, that prior to the 1900 amendment of said sec. 31, the county boards of education could alter the lines of any school district that had not been created by act of the legislature, and that after such amendment these county boards could alter the lines of any school district, whether or not created by act of the legislature.

2. CONSTITUTIONAL LAW-DelegatION OF LEGISLATIVE POWER-COUNTY BOARDS OF EDUCATION.--Const., art. III, sec. 1, providing that the legislative power shall be vested in the Senate and House of Representatives, is not infringed by act 1896, sec. 31, as amended in 1900, authorizing county boards of education to alter lines of school districts, such legislation not being an attempt to delegate legislative powers to the county boards of education, but merely to define their powers and duties, as authorized by Const., art XI, sec. 3, providing that the General Assembly shall define the powers, duties, etc., of