etc. R. R. Co., 28 S. C. 401; 13 Am. St. Rep. 686, and note, with the cases collected.

RAILROADS-DUTY TO PROTECT PASSENGERS.-It is the duty of carriers of passengers by railway to protect them, in so far as possible, by the exercise of a high degree of care, from the violence and insults of other passengers, strangers, or the carrier's own servants: Dillingham v. Russell, 73 Tex. 47; 15 Am. St. Rep. 753, and note; Richmond etc. R. R. Co. v. Jefferson, 89 Ga. 554; 32 Am. St. Rep. 87, and extended note. This principle is further discussed in the late cases of Butler v. Manhattan Ry. Co., 143 N. Y. 417; 42 Am. St. Rep. 738, and note; and Graeff v. Philadelphia etc. R. R., 161 Pa. St. 230; 41 Am. St. Rep. 885, and note.

STATE V. GORHAM.

[115 NORTH CAROLINA, 721.]

INTERSTATE COMMERCE-RIGHT TO TAX TRADES.-A state may tax trades, professions, and avocations carried on within its borders, although the goods dealt in are manufactured in another state.

INTERSTATE COMMERCE-LICENSE TAX.-One acting as agent for the sale and delivery in one state of the manufacturers of lightning-rods made in another, who, after receiving the rods in bulk, breaks the original package for distribution to his customers, and puts up the rods without extra charge whenever a purchaser requests it, is an itinerant putting up lightning-rods within the meaning of a statute of the former state, providing for a license tax on such itinerant, and the imposition of such license tax on such agent is not the imposition of a burden on interstate

commerce.

Attorney General and W. J. Peele, for the appellant.

P. Busbee and H. G. Connor, for the appellee.

725 MACRAE, J. Section 27 of chapter 294 of the acts of 1893, being a part of schedule B, the taxes in which are imposed as license taxes for the privilege of carrying on business or doing the act named, is as follows: "On every itinerant who puts up lightning-rods, fifty dollars annually, for each county in which he carries on business." There is nothing in the words of the statute to indicate a purpose to levy a tax in any form upon, or to impose a restriction in any manner upon, citizens or inhabitants of other states from engaging in business connected with the commerce between the states, which is protected from state legislation by the constitution of the United States. The right of a state legislature to tax trades, professions, and avocations within the borders of the state has never been disputed.

It is earnestly contended, however, by the learned counsel,

that the defendant was not an itinerant engaged in putting up lightning-rods, but that his business was that of selling, 726 in which, of course, is included the delivery, an article manufactured in another state. That it appears by the special verdict that such sale and delivery included the putting up of said rods, whenever the purchaser so requested, and for which service no extra charge was to be made; and, therefore, that the imposition of a license tax upon defendant for putting up the rods sold by him "is an attempt to impose a tax on the business of carrying on interstate commerce." We are not disposed to question the principle so often laid down by the supreme court of the United States from Brown v. Maryland, 12 Wheat. 419, to Brennan v. Titusville, 153 U. S. 289, that no state has a right to lay a tax on interstate commerce in any form; neither have we any disposition to extend the application of this doctrine any further than we find it.

Unless there is something in this special verdict which so connects the act of defendant in putting up the lightningrods sold by him with the business of interstate commerce it will be our duty to uphold the law of this state, and apply it to the case before us.

The whole matter is in a nutshell. After finding the fact that Cole Bros. were manufacturers in another state, and defendant was their agent in this state for the sale of their wares, it further finds "that such sale and delivery included the putting up of said rods, whenever the purchaser so requested, for which no extra charge was to be made." Under these circumstances, is the defendant liable for the license tax?

It will be seen that quantities of the goods were shipped to the agent, at some convenient point in this state, in original packages, and were, after bulk broken, distributed and delivered by him to the different purchasers. That the sale was not completed by delivery until after such breaking of bulk in this state, and that the quantity of the article was not determined in the order, as will appear by reference to "Exhibit A," and was to be determined after the importation of the original package. The consideration of these facts 727 leads us to the conclusion that the present case may easily be distinguished from any of the numerous adjudications on the subject. In Brennan v. Titusville, 153 U. S. 289, the pictures were delivered, framed, direct to the pur

chaser. Of necessity the goods, if many of them had been shipped to the agent for delivery, were separate and distinct from all other goods of the same character.

It was not obnoxious to the interstate commerce clause of the constitution when a license tax was laid "on all peddlers of sewing-machines without regard to the place of growth or produce of material or of manufacture," because the test is "whether there is any discrimination in favor of the state which enacted the law": Machine Co. v. Gage, 100 U. S. 676. "When goods are sent from one state to another for sale, or, in consequence of a sale, they become part of its general property, and amenable to its laws, provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being brought from another state, but only taxed in the usual way as other goods are": Robbins v. Shelby County Tax. Dist., 120 U. S. 489, citing Machine Co. v. Gage, 100 U. S. 676, and Brown v. Houston, 114 U. S. 622.

If this license tax upon itinerants putting up lightningrods could in the slightest degree affect the sale and delivery of the article, its effect upon the interstate commerce would be so incidental and remote as not to amount to a regulation of such commerce, as in Fickler v. Shelby County Tax. Dist., 145 U. S. 1. Again, as said in McCall v. California, 136 U. S. 104, where an agent of a railroad running from another state was soliciting business, but not selling tickets in California, "The test is, was the business a part of the commerce of the road? Did it assist, or was it carried on with the purpose to assist in increasing the amount of passenger traffic on the road?"

putting up lightarticle is not in

In our case the business which could not be taxed was the sale of, or the solicitation of persons to purchase, the lightning-rods manufactured in another state. The avocation 728 requiring a license is that of an itinerant ning-rods. The sale and delivery of the separable from the erection of it, any more than the shoeing of horses is from their importation into the state, or the shipping here of wheat is from its sowing in the fields. Indeed, it appears by the contract that the agent was only to put up the rods when requested so to do by the purchaser; the inference is that the purchaser might choose to employ some one else to put them up, and that a sufficient margin is allowed upon the price to fully pay the expenses of erection, and make

it to the interest of the purchaser to require the seller to put it up. One who goes through the country putting up rods is none the less liable to be taxed for the privilege of exercising his avocation because he adds to this business that of 80liciting the purchase of the articles to be so put up by him. If such is the law it will not be difficult for persons whose avocations are taxed to ingraft upon their business a branch for the sale of some article of foreign manufacture which is a necessary part of the business in which they are engaged. We may distinguish the manner of delivery of the articles named in Spains case, 47 Fed. Rep. 208, if we were bound by the opinion delivered in that case. Certain specified articles, lamps, lampshades, etc., manufactured in West Virginia, were sold by the agent traveling in North Carolina. for his principal. Many of the articles ordered were shipped in the same box to the agent, who took out the separate articles, and completed the sale by delivery of the same to the purchasers. But here a sufficient quantity of the lightning-rod material is shipped to the agent, from which to fill orders theretofore taken; he selects from the bulk enough to fill the order of his customer and delivers it. The bulk was broken, and the same became a part of the general property in the state before delivery when the package was opened, and a part thereof, until then undistinguishable from the balance, was set apart, to be delivered to a particular purchaser.

729 The latest, as far as we have been able to ascertain, of the very numerous deliverances of the highest court of this country upon the subject we have under consideration, is that of Brennan v. Titusville, 153 U. S. 289. The defendant was the agent of the manufacturer of picture-frames and maker of portraits, residing in Illinois. The defendant's business was to travel in Pennsylvania, and to solicit orders for said pictures and frames; the orders were forwarded by the defendant to his principal in Chicago, who shipped the goods direct, by express or freight, to the purchaser; the price of the goods was sometimes paid to the express company and sometimes to the agent. An ordinance of the city of Titusville had attempted to lay a license tax upon "all persons canvassing or soliciting within said city orders for goods, books, paintings, wares, or merchandise of any kind, or persons delivering such articles under orders so obtained or solicited."

This was so clearly within the rulings in the cases of Rob

AM. ST. REP., VOL. XLIV. - 32

bins and Asher, that it scarcely required an elaborate opinion; its simple statement will show the particulars in which it differs from ours.

We conclude, then, that his honor was in error in holding that the defendant was not guilty upon the special verdict, because: 1. The defendant was an itinerant putting up lightning-rods; 2. The connection between the pursuit of this avocation and the sale of articles manufactured in another state was so remote in its effect as to impose no burden upon the business of interstate commerce; 3. The manner of sale and delivery of the lightning-rods was such as to divest it of any feature of interstate commerce, the original packages being necessarily broken before the sale was completed by delivery.

There is error, and the judgment is reversed.

INTERSTATE COMMERCE - TAXATION OF OCCUPATIONS.-A state cannot tax nor regulate interstate commerce, nor make the payment of a tax or the taking out of a license a condition precedent to carrying on interstate commerce: Osborne v. State, 33 Fla. 162; 39 Am. St. Rep. 99, and note, with the cases collected. For a thorough discussion of this subject, see the monographic note to People v. Wemple, 27 Am. St. Rep. 547. And see, also, the late case of Postal Telegraph etc. Co. v. Adams, 71 Miss. 555; 42 Am. St. Rep. 476,

STATE V. NORWOOD.

[115 NORTH CArolina, 789.]

CRIMINAL LAW-DEADLY WEAPON, WHAT IS.-The question whether an instrument with which a personal injury is inflicted is a deadly weapon depends upon the manner of its use, rather than upon the intrinsic character of the instrument itself. HOMICIDE-PRESUMPTION OF MALICE. -An intentional killing with a deadly weapon, when proved or admitted, raises a presumption of malice, and is prima facie evidence of murder in the second degree, without proof of deliberation or premeditation. HOMICIDE-KILLING WITH DEADLY WEAPON.-A deliberate determination to take a child's life by putting a hairpin down its throat, if carried into execution, thereby causing its death, is a killing with a deadly weapon, and constitutes murder in the first degree.

INSANE PERSONS-PRESUMPTION OF SANITY.-Matters of extenuation and

excuse or discharge from liability by reason of insanity must be shown by him who sets it up, and, in the absence of such proof, the presump tion in favor of sanity prevails.

INDICTMENT, trial, and conviction of murder in the first degree. The evidence showed that Ella Norwood, the accused,