was in the relation of being dependent upon the deceased, or that the plaintiff had any right to expect pecuniary assistance from the deceased as contemplated by the law of this case."

His Honor, the presiding Judge, said:

"I cannot escape the conclusion that this motion for a nonsuit must prevail. I prefer giving my reasons for it in writing, which I will do. It seems to me, on all three of the points made, that it is unanswerable that the plaintiff cannot proceed with his case. On the ground of negligence, first, there has been no negligence shown on the part of the railroad company; the fact that a man has been killed does not prove negligence, he must have been killed by some act of the railroad company averred in the complaint, and there must be some testimony on that point, and I think on that ground the nonsuit is proper. On the ground that he was engaged in interstate commerce, this suit, being under our State statute, would have to go out-that fact appearing.

Thereafter, when his Honor, the presiding Judge, gave his reasons in writing, he made no material change, except in the additional statement that:

"So far as the facts shown by the plaintiff in this case are concerned, the most that could be claimed is that the father of the deceased had, on occasions, received sums of money from his son, in the way of gifts."

1

The first question we will determine is whether there was error in granting the nonsuit on this ground:

"That even if it were so that there was any evidence of any acts of negligence, alleged in the complaint, constituting the proximate cause of the injury, it appears in evidence that the train causing the alleged injury was engaged in interstate commerce at the time of the injury."

In ruling thereon, his Honor, the presiding Judge, said:

"On the ground that he was engaged in interstate commerce this suit, being under our statute, would have to go out-that fact appearing."

The fact that it appeared from the testimony that the deceased was employed in interstate commerce at the time he was alleged to have been thrown from the top of the car did not preclude the consideration of other testimony, by the jury, tending to show negligence and wilfulness on the part of the defendant, in causing the death of the deceased, while it was engaged in interstate commerce. Whenever there is testimony from which it could be reasonably inferred that the railroad company was operating an interstate train, or that the person injured was not employed in interstate commerce, at the time of the injury, the case should be submitted to the jury, under proper instructions, both as to Lord Campbell's Act and the Federal Employers' Liability Act. Howell v. Railway, 99 S. C. 417, 83 S. E. 639.

"When, under proper allegations of the complaint or answer and the evidence adduced there is an issue of fact whether the State or Federal law is applicable, the case should be submitted to the jury under proper instructions as to both aspects of it, so that the jury may render their verdict under the one or the other, as they may find the facts." Keonnecke v. Railway, 101 S. C. 86, 85 S. E. 374; Seaboard Air Line R. Co. v. Keonnecke, 239 U. S. 352, 36 Sup. Ct. 126, 60 L. Ed. 324.

There was testimony from which a reasonable inference could be drawn that plaintiff's intestate was killed at a time when neither he nor the train from which he fell was engaged in interstate commerce. It was error, therefore, to sustain this ground of nonsuit, and the case should have been submitted to the jury.

The next question that will be considered is whether there was error in granting the nonsuit on the following ground: "That there is a total failure of evidence of any of the acts of negligence alleged in the complaint, and that there is no

evidence that any act of negligence alleged in the complaint was the proximate cause of the injury."

This Court is satisfied that there was testimony tending to show such negligence as constituted the proximate cause of the injury, but do not deem it advisable to discuss the evidence, in detail, as it will be necessary to remand the case for a new trial, and such discussion might be given undue weight by the jury.

The last ground upon which the nonsuit was granted is as follows:

"That there is no evidence that the plaintiff, or any one else, was in relation of being dependent upon the deceased, or that the plaintiff had any right to expect pecuniary assistance from the deceased as contemplated by the law of this State."

There was testimony from which it could be reasonably inferred that the plaintiff was entitled to damages, either under the Federal Employers' Liability Act or Lord Campbell's Act. But we will not discuss the evidence in detail, for the reasons already stated.

Judgment reversed, and case remanded for new trial.

1. STATUTES

· TITLE

9567

STATE v. FREELAND.

(91 S. E. 3.)

CODIFIED ACTS.-The constitutional requirement that every act shall relate to but one subject, which shall be expressed in the title, does not apply to codified acts, such as the Criminal Code.

2. INDICTMENT AND INFORMATION-SUFFICIENCY OF INDICTMENT-WILFULNESS AND KNOWLEDGE.-An indictment under Cr. Code 1912, sec. 405, providing that any one in possession of cocaine or a mixture thereof, with certain exceptions, shall be guilty of a misdemeanor, need not allege that defendant wilfully and knowingly had possession of the cocaine; those words not being used in the statute.

3. POISONS-ELEMENTS OF CRIME-INTENT STATUTE.-Cr. Code 1912, sec. 405, providing that any person found in possession of any

cocaine or compound thereof, etc., though it does not include wilfulness or knowledge as elements of the offense, must be construed in the light of the fundamental principle of common law that an evil intent must concur with the act to make it a crime.

4. POISONS-CRIMINAL PROSECUTIONS-INSTRUCTIONS-KNOWLEDGE.—In a prosecution for possessing cocaine, an instruction that defendant should be acquitted if she did not know that she had it in her possession was too favorable to defendant, since culpable ignorance of such fact would not excuse her.

5. POISONS-BURDEN OF PROOF-IGNORANCE OF FACTS.-In prosecution for unlawfully possessing cocaine contrary to Cr. Code 1912, sec. 405, the burden is on defendant to show that she was honestly ignorant of the fact that she possessed cocaine, and that her ignorance was not due to her own fault.

6. INDICTMENT AND INFORMATION-SUFFICIENCY-NEGATIVING EXCEPTIONS. An indictment under Cr. Code 1912, sec. 405, making any person having possession of cocaine or a mixture thereof, except when the vial containing it bears the name of the physician prescribing it and of the druggist compounding it, guilty of a misdemeanor, must negative the exception, since it is included within the enacting clause.

Before MOORE, J., Greenwood, March, 1915. Reversed.

Leah Freeland was convicted of unlawfully having cocaine in her possession, and she appeals.

Mr. D. H. McGill, for appellant, cites: As to sufficiency of indictment: 2 Hill 133; 1 N. & McC. 91; 54 S. C. 286; Crim. Code 1912, sec. 405; Const., art. III, sec. 17; 17 S. C. 462, 463.

Mr. Solicitor Cooper, for respondent.

December 26, 1916.

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

FOOTNOTF.-As to necessity for negativing in indictment exceptions in statutes, sec 9 L. R. A. 853, 855, 49 L. R. A. (N. S.) 583, 6 A. &. E. Ann. Cas. 726, 13 A. &. E. Ann. Cas. 364, A. &. E. Ann. Cas. 1913b, 135.

Defendant appeals from sentence on conviction for violation of sec. 405 of the Criminal Code, the pertinent provisions of which are:

"Any person who shall be found in possession of any cocaine, or any person who shall be found in possession of any compound or mixture thereof, except when the bottle, box or vessel containing said compound or mixture bears the name of the practicing physician prescribing it and the name of the druggist or pharmacist compounding or mixing it, shall be deemed guilty," etc.

The indictment alleged only that defendant did, at a time and place specified, "have and keep in possession cocaine, against the form of the statute," etc.

The appeal presents only three questions that need be considered:

1. The objection to the constitutionality of the statute on the ground that it violates the provision of the Constitution

"that every act shall relate to but one subject and 1 that shall be expressed in the title" was properly overruled, because that provision does not apply to codified acts. Park v. Laurens Cotton Mills, 75 S. C. 560, 56 S. E. 234.

2. The objection that the indictment was insufficient because it was not alleged that defendant "wilfully and knowingly" had cocaine in her possession was also properly

overruled. The statute does not use those words in 2 defining the crime, but makes the mere possession of cocaine, except in certain circumstances specified, a misdemeanor. Therefore, it was not necessary for the State to allege or prove guilty knowledge on the part of defendant. The absence of such knowledge is matter of defense, since every one may be presumed to know what he has in his possession. Bish. Stat. Crimes, sec. 358; 1 Bish. Crim. Law, secs. 302, 303, 307.