tinction between the classes as classes, whether they are characteristics which, in a greater degree, persist through the one class than in the other, which justify legal discrimination between them.' We are of opinion that the office and shop employees are sufficiently distinct in their employment and relation to the conduct of the railroad business to justify the legislature, within the field of its discretion and with regard to public policy, in exempting them from the operation of the law."

The same case was before the court in 142 Wis. 154 (125 N. W. 464), and the act again considered, in two separate opinions, sustaining the former decision. In further discussing this question it was said, in part:

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"As to the provision exempting shop and office employees from the operations of the act, a different question arises. This is undoubtedly classification, or rather subclassification, of employees. * * * Nor is classification to be condemned by the courts because the situation of certain individuals in one class may not differ materially from the situation of certain individuals in another class. Speaking generally of the shop and office employees as a class, they are in less danger from the negligence of coemployees, and perform duties less directly and vitally connected with the public safety than train employees and track repairers, who constitute a very large percentage of the other class, and we cannot say that the differences are not such as would justify a reasonable mind in concluding that they suggest the propriety of substantial differences in legislative treatment."

Following these decisions, the question of the status of a shop employee, when temporarily engaged in the line of his work outside a shop, arose in Ruck v. Railway Co., 153 Wis. 158 (140 N. W. 1074). Ruck was a boiler maker employed in defendant's shops at Milwaukee, and was sent to assist in repairing a boiler from a wrecking train, lying on the ground near the roundhouse at Galewood, and while so en

gaged was injured. Though not then actually working in any shop, nor even in the city where the shops in which he usually worked were located, it was held that he was nevertheless in the excepted class, and still to be considered an employee working in a shop within the meaning of the statute, the court saying, among other things:

"A shop employee who goes into the shopyard or even a great distance from the shop for the purpose of performing the kind of labor which is ordinarily done in the shop is, we think, within this exception. The words 'employees working in shops or offices' must therefore, we think, include that class employed for such service whether actually within the walls of the shop or not, * * although outside the shop

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at the time of the injury."

The State of Minnesota has a statute abolishing the common-law fellow-servant rule as to employees of companies owning or operating railroads, which contains no exception of any class, as do the Wisconsin and Michigan acts, and a different rule prevails in that jurisdiction. A case, however, arose in that State involving an accident which occurred at Stevens Point, Wis., entitled Koecher v. Railway Co., 122 Minn. 458 (142 N. W. 874), wherein the facts were very similar to those in the instant case. Koecher was employed as a machinist in defendant's roundhouse at Stevens Point, and while going from there to an engine standing outside, a short distance away, upon which he was working, he was struck and injured by another engine through the negligence of a coemployee. Finding that the Wisconsin statute applied, the court held plaintiff was within the excepted class, and to the contention that a roundhouse was not a "shop" said:

"We think the term in this statute is used in that sense, and that a roundhouse in which machinists are regularly employed for the purpose of making repairs

is a shop within the meaning of the statute. Both the character of the work and the class of employees is the same as in other railroad shops, and under the Wisconsin rule we see no escape from the conclusion that plaintiff was a shop employee at the time of the accident."

For the foregoing reasons, the judgment is reversed, and no new trial granted.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and MOORE, JJ., concurred.

PEOPLE v. EGGLESTON.

1. CRIMINAL LAW-PEREMPTORY CHALLENGES-TRIAL—JURY. In criminal proceedings a respondent is entitled to peremptory challenges without assigning any reason for his action.

2. SAME-BURGLARY-INTENT-INTOXICATION.

If a person charged with burglary was so affected by the use of intoxicating liquors that at the time of committing the act he was unconscious of what he was doing, he did not have sufficient capacity to entertain a criminal intent, but if he knew why he was doing the act the jury might infer the intent as if he was sober. It was erroneous for the trial court to instruct the jury that the law holds the accused responsible because he should not have gotten intoxicated but should have restrained himself from indulging in such drugs or liquors.

No error was committed on the trial of a prosecution for burglary in charging that if the respondent broke and entered a dwelling house in the manner described by the

only witnesses who gave evidence touching upon the commission of the offense, he should be convicted.

4. SAME-INSANITY.

The defense of insanity, as soon as evidence is introduced tending to show such condition of mind, does not require the respondent to establish his unsound condition of mind by a preponderance of the evidence; the burden of proof rests with the people to convince the jury beyond a reasonable doubt that he was sane when he committed the offense.1

5. SAME EVIDENCE-PRESUMPTIONS-BURDEN OF PROOF.

Where respondent claimed that he had a joint interest in the house and premises which he was charged with entering unlawfully, the trial court should have instructed the jury, as requested by the accused, that if he thought this ownership or interest gave him a right to enter the house, he would not be guilty of a felonious intent.

Error to Barry; Smith, J. Submitted April 22, 1915. (Docket No. 54.) Decided June 7, 1915.

Frank Eggleston was convicted of burglary. Reversed.

Thomas Sullivan, Prosecuting Attorney, for the people.

Lee H. Pryor (W. W. Potter, of counsel), for respondent.

BROOKE, C. J. Respondent stands convicted of the crime of burglary. The first four assignments of error discussed in the brief of counsel for respondent relate to incidents occurring during the empaneling of the jury. At that stage of the proceedings the learned circuit judge seems to have become somewhat impatient at the course taken by respondent's counsel in peremptorily challenging certain jurors. While we might hesitate to reverse the case on account of what

1 As to presumption of sanity and burden of proof, see note in 36 L. R. A. 721, 726.

happened in this connection, inasmuch as it must go down for a new trial for other reasons, it is perhaps proper to say that the statute securing to parties the right of peremptory challenge imposes upon counsel who exercise that right no obligation to assign any reason for its exercise. It is claimed by counsel for respondent that the language used by the learned circuit judge in this connection was such as to indicate his bias in the premises, and in effect resulted in the denial to the respondent of a fair and impartial trial, under the authority of Wheeler v. Wallace, 53 Mich. 355 (19 N. W. 33), and People v. Leonzo, 181 Mich. 41 (147 N. W. 543). This contention may for the reason stated, be passed without determination.

Upon the trial evidence was introduced on behalf of respondent tending to indicate that, if an offense had been committed by him, it was so committed while he was under the influence of liquors or drugs, and insane to such an extent that he was unable to form a criminal intent. Upon this point the learned circuit judge charged the jury as follows:

"We frequently meet men in courts of justice who claim that they committed crime because they were drunk. The law holds them responsible, because they should not have gotten drunk; they should not have formed the habit, so the law requires of a man that he will curb his passions and restrain himself, and, if he does not do it, holds him accountable, unless it is by reason of disease which renders him unable to do it, or, in other words, distracts his mind or his powers, so that he has no control of himself."

The true rule was announced in the case of Roberts v. People, 19 Mich. 401, where it is said:

"If his mental faculties were so far overcome by the intoxication that he was not conscious of what he was doing, or if he knew what he was doing, but did not know why he was doing it, or that his acts and