nection with each other or that the means used to obtain. the money were one and the same or different means in each case. The indictment was not the re-statement of one offense in different language. It furnished defendant no information other than that he was charged with four separate offenses. The court should have required the State to elect, and it was error to require defendant to plead to and go to trial upon all four charges.

The court at the request of the State instructed the jury, in substance, that if they believed from the evidence defendant did not himself engage in the actual practice of fortune telling, yet if they believed that he acted as the agent with knowledge of the promises held out he would be an accessory and equally guilty, and his handling the money under such circumstances as to charge him with knowledge of how it was obtained imputes to him a guilty knowledge of the transaction and the jury should find him guilty. The State admits the instruction is loosely worded, which is true; but in addition to that objection it is clearly wrong and should not have been given. Defendant was not charged in the indictment with having engaged in the practice of fortune telling, but the charge was obtaining money by means and by use of the confidence game. The instruction directed a verdict, and giving it was error.

Defendant testified he was not in Alton at the times Bauer claimed he gave him money there, and offered some proof to corroborate him. The court instructed the jury, for the State, that to sustain the defense of alibi it was necessary for defendant to prove, beyond a reasonable doubt, that he was not at the place at the time charged, and that his whereabouts must be accounted for in such a way as to show he could not within human limitations have been at the place charged at any time during the period alleged. This was clearly erroneous. Where an alibi is interposed as a defense the burden is not on defendant to prove it beyond a reasonable doubt. He is only required to support

the defense by proof of facts and circumstances which, considered in connection with all the other evidence, create in the minds of the jury a reasonable doubt of his guilt. Ackerson v. People, 124 Ill. 563; Hoge v. People, 117 id. 35; Carlton v. People, 150 id. 181.

For the reasons stated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

(No. 13315-Decree affirmed.)

THE HUMP HAIRPIN MANUFACTURING COMPANY, Appellant, vs. LOUIS L. EMMERSON, Secretary of State, Appellee.

Opinion filed June 16, 1920.

1. CORPORATIONS-when whole of capital stock of foreign corporation is represented by property located and business transacted in Illinois. Where a foreign corporation has all of its tangible property in Illinois, manufactures its products, accepts orders and completes all of its contracts of sale in this State, the whole of the capital stock is represented by the property located and the business transacted in Illinois, although a large per cent of its commodities is shipped to wholesalers and jobbers in other States.

2. SAME when license fee based on entire capital stock of foreign corporation is not a tax on interstate commerce. Where the entire capital stock of a foreign corporation is represented by business transacted and property located in Illinois, a license fee under section 56 of the Foreign Corporation act, based on the entire capital stock of the corporation, is not a tax on interstate commerce, where the corporation is not doing business in any other State in such a way as to make it amenable to a corporation act of such foreign State. (American Can Co. v. Emmerson, 288 Ill. 289, followed.)

APPEAL from the Circuit Court of Sangamon county; the Hon. E. S. SMITH, Judge, presiding.

ALLEN & CONVERSE, for appellant.

EDWARD J. BRUNDAGE, Attorney General, (Clarence N. BOORD, and JAMES W. GULLETT, of counsel,) for appellee.

Mr. JUSTICE STONE delivered the opinion of the court: Appellant, a foreign corporation, filed a bill in the circuit court of Sangamon county to restrain the Secretary of State of Illinois from revoking its license to do business in this State. The chancellor heard the cause on the bill, answer, replication and stipulation of facts and entered a decree dismissing the bill for want of equity.

Appellant was organized in 1914 under the laws of West Virginia with an authorized capital stock of $6,000,000, of which amount $5,500,000 had been issued at the time interrogatories were propounded to it by the appellee, Secretary of State, under section 5b of the Foreign Corporation act. It was licensed by the Secretary of State to do business in this State on November 17, 1914, and at that time paid a license fee of $70 and has since transacted business in the State of Illinois. It manufactures its products in the city of Chicago, where it employs a large number of employees, and in addition thereto maintains a force of traveling salesmen, who travel in the various States soliciting orders from wholesalers and jobbers. These orders are mailed to appellant at its offices in Chicago, and upon acceptance its products are shipped by express, freight or mail from Chicago to the purchasers in the States from which the orders are received. In answer to interrogatories submitted by the Secretary of State, appellant stated that its total annual business for the year 1917 was $260,334.96, all of which was transacted through its office in Chicago; that the amount of sales made to residents of Illinois in said year was $25,814. It is stipulated that up to the time of filing the bill of complaint the appellant did not have or maintain any other factory or manufacturing establishment or maintain any other office or place for the transaction of said business, and that all orders for its products were received, accepted at and filled from its office, factory and store-room in the city of Chicago.

It is contended by the appellant that in determining the amount of license fee to be paid by it under the Foreign Corporation act, all, or 100 per cent, of its tangible property (all being located in Illinois) should be averaged with 9.9 per cent of its total business, for the reason that only that part of its total business is transacted in this State, thereby making the fee payable on 54.95 per cent of the capital stock represented in Illinois, or $3,297,000 of capital stock, and amounting to a fee of $3342, less the credit of $70 previously paid. It is also urged that a fee based on a greater amount of capital stock would burden interstate commerce, which a State has no power to do. It is contended by the appellee that the total business transacted by the appellant is transacted in Illinois within the terms of the act in question, and that as all its tangible property is located in this State it should pay a fee on its authorized capital stock of $6,000,000, or $6045, less $70 previously paid in 1914, leaving a balance due of $5975.

This case arises under the same section of the Foreign Corporation act as was under consideration in American Can Co. v. Emmerson, 288 Ill. 289, and as to all questions arising here which were there treated that case is controlling and those questions need not be further discussed. The distinction between that case and the instant case is, that the license fee in the former case was fixed on a basis of less than the entire capital stock, it being there shown that the appellant was engaged in the transaction of business in other States aside from Illinois, while in the instant case the fee required by appellee is computed on the entire capital stock of the appellant, on the ground that all its tangible property is located and all its capital stock is represented by its business transacted in this State.

Section 56 of the Foreign Corporation act, under which corporation fees are assessed, is as follows: "It shall be the duty of the Secretary of State to propound interroga

tories from time to time to officers of such foreign corporations doing business in this State to ascertain the proportion of capital stock actually being represented by property located and business transacted in the State of Illinois, which proportion shall be determined by averaging the percentage of the total business of the corporation transacted in Illinois with the percentage of the total tangible property located in this State. If no tangible property is used in the business of the corporation, the proportion of capital stock represented shall be determined with reference only to the percentage of the total business of the corporation transacted in Illinois. In the event that the foreign corporation making application for license has capital stock of no par value, its shares for the purpose of fixing the license fee shall be considered to be of the par value of one hundred dollars ($100) per share." (Hurd's Stat. 1917, p. 719.)

In American Can Co. v. Emmerson, supra, it was held that while the State has no right to burden interstate commerce by taxing it, yet the State is authorized to levy a license fee within its authority, measured by the capital stock, though a part of such capital stock may be represented in the conduct of interstate commerce, where the circumstances are such as to indicate no purpose or necessary effect in the tax imposed to burden commerce of that character. That is likewise the rule adopted by the United States Supreme Court in Kansas City v. Stiles, 242 U. S.

Northwestern Mutual Ins. Co. v. Wisconsin, 247 id. 132, and United States Glue Co. v. Oak Creek, 247 id. 321. The question arising here is whether or not all of the capital stock of appellant is represented by property located in this State and by business transacted in this State. If the property located and the business transacted in Illinois represent its entire capital stock, then appellant is required to pay a fee computed on its entire capital stock. If, on the other hand, when the percentage of the total business of the corporation transacted in Illinois is averaged