dence certain letters written by prosecutrix to a third party, in which prosecutrix shows a vulgar and lascivious mind. We do not deem it necessary to copy said letters. Previous acts and conduct of prosecutrix are admissible for the purpose of discrediting prosecutrix, and also for the purpose of shedding light upon her chastity at the time of her alleged seduction by defendant. The court committed error in excluding these letters. Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. 174; Creighton v. State (Tex. Cr. App.) 51 S. W. 910; McClain's Cr. Law, vol. 1, p. 277, § 1117.

The record contains various bills with reference to the refusal of the court to permit appellant to prove acts of the prosecutrix, subsequent to the alleged commission of the offense, going to show illicit relations or lascivious conduct with other parties than defendant.

This evidence should have been admitted. It was admissible for the purpose of showing that prosecutrix was unchaste prior to the alleged illicit intercourse with appellant. Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. 174. Creighton v. State (Tex. Cr. App.) 51 S. W. 910. The mere fact that prosecutrix becomes a prostitute, if such be the case, after being seduced, would not be any justification or defense to appellant for seducing prosecutrix. But if her conduct be such as to indicate general prostitution on her part, this is and should be considered as a circumstance by the jury in passing upon whether or not she was probably chaste at the time of her alleged seduction. While the court should admit this testimony, still it should be limited to the purpose for which it was introduced as indicated. We are not attempting to lay down any form of charge, but to indicate that the court should instruct the jury that such evidence should only be considered by them for the purpose of passing upon whether or not prosecutrix was chaste at the time of the alleged seduction, and for no other purpose.

Appellant requested the following instruction: "The court instructs you, if you be lieve from the evidence beyond a reasonable doubt that the prosecuting witness, Willie Bell Stanley (then Willie Bell Doyal), did not rely solely upon the absolute promise of marriage, but that she was moved to let defendant have the alleged sexual intercourse with her partly through fear, or partly through lust, or through both fear and lust, then it is your duty to acquit the defendant, although you should believe that a promise of marriage was then made, and was part; though not the sole and only, reason of inducement." This charge should have been given. Barnes v. State, 37 Tex. Cr. R. 329, 39 S. W. 684; Spenrath v. State (Tex. Cr. App.) 48 S. W. 192; Fine v. State (Tex. Cr. App.) 77 S. W. 807.

Bill No. 15 shows that while witness Danny Mitchell was on the stand in behalf of

the state upon cross-examination appellant's counsel asked the following questions: "Is it not a fact that defendant, shortly after his arrest in this case, requested you to go see W. L. Doyal, father of prosecutrix, and with whom she lived, and ask said W. L. Doyal's permission to marry prosecutrix? And is it not a fact that you did go to the said W. L. Doyal, for defendant, and asked his permission for defendant to marry prosecutrix? And is it not a fact that you did go to see said Doyal for defendant, and ask his permission for defendant to marry prosecutrix? And is it not a fact that said Doyal promised to let you know whether or not he would grant said permission? And is it not a fact that he never did let you know, and that you reported all these facts to defendant? And is it not a fact that prosecutrix at said time was a minor, a little over sixteen years of age, and that she then resided with her father at Iredell, Texas?" The state objected to said questions and the answers because it did not show an offer in good faith to prosecutrix to marry her. Witness would have testified to these facts if permitted. The court appends this explanation: "When this witness was on the witness stand, the jury were sent out, and witness testified before the court, and, in addition to what is stated in the bill, stated that defendant told witness on next day after he gave him the message for Doyal, that defendant told him he did not intend to marry Willie Bell Doyal, and the court thought it was not made in good faith. Under the amendment of the seduction law it provides that the offer must be made to the woman, and this offer was never made to her, and, she being the one who must decide or accept or reject it, was immaterial and irrelevant what message was sent to her father." We do not think there was any error in the ruling of the court. Harvey v. State (Tex. Cr. App.) 53 S. W. 102. For the errors discussed, the judgment is reversed, and the cause remanded.

Defendant had a package of liquor in the express office, which had been sent to him C. O. D., and let different parties, who furnished the money to take the package out of the express office, have shares of the liquor. Held, that defendant was guilty of violating the local option law.

2. CRIMINAL LAW-APPEAL-PRESUMPTIONS. In the absence of a showing to the contrary, it will be presumed on a criminal appeal that an application for a continuance, the overruling of which is complained of, was a second application.

Appeal from Comanche County Court; J. H. McMillan, Judge.

George Sliger was convicted of violating the local option law, and appeals. Affirmed. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Conviction of violating the local option law; punishment assessed being a fine of $25, and 20 days' confinement in the county jail.

The facts show that appellant had a package containing intoxicants in the express office, which had been sent to him C. O. D.; that he let Condrum have one quart of it, and other parties the remainder. Condrum and other friends furnished the money to pay the package out of the express office, as consideration for the whisky they received. The facts of this case come strictly within the rule laid down by this court in Dunn v. State, 86 S. W. 326, 12 Tex. Ct. Rep. 803; Treadway v. State, 62 S. W. 574, 2 Tex. Ct. Rep. 415.

Appellant also complains of the overruling of his motion for continuance. In the absence of a statement to the contrary, we will presume it is the second application. There is no diligence shown. Furthermore, the testimony was cumulative, as will be seen from a casual inspection of the statement. There is no error in the record, and the judgment is affirmed.

HALL v. STATE.

(Court of Criminal Appeals of Texas. June 7, 1905.)

1. STATEMENT OF FACTS-TIME OF FILING.

Where the court adjourned on April 30th, and the statement of facts was not filed until August 30th, it cannot be considered, in the absence of any reason assigned for the delay. 2. SAME CONTINUANCE-REVIEW.

The refusal of a continuance will not be reviewed in the absence of a statement of facts. 3. BILL OF EXCEPTIONS-SUFFICIENCY.

A bill of exceptions reciting that, when a certain witness was on the stand, defendant, anticipating that he would testify that defendant was whipping his wife when deceased interfered, asked that the jury be retired before hearing the testimony, and stated that certain witnesses would testify to defendant whipping his wife, "to which, before the jury heard the same, defendant objected because the same was irrelevant and immaterial," is too indefinite to be considered; it being difficult to determine whether defendant objected to the refusal to retire the jury, or to the admission of the evidence.

4. EVIDENCE-DECLARATIONS OF DEfendant. In a prosecution for murder, permitting a witness to testify to a statement of defendant that: "I have just called a woman a liar.

I used to hunt ducks down here on the bayou, and I could get them on the wing, and I think I can get those standing"-was not error, where it appeared from the court's explanation of the bill of exceptions that the proof showed that defendant had just called a certain woman a liar, and in a difficulty just previous, when deceased interposed, defendant left the house, uttering a threat against deceased's life. Appeal from District Court, Hardin County; L B. Hightower, Judge.

Archie S. Hall was convicted of murder in the second degree, and he appeals. Affirmed. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of murder in the second degree.

The court adjourned on April 30, 1904. What purports to be a statement of the facts was filed on August 30, 1904. No reason is assigned for the delay. The refusal of the continuance will not be reviewed in the absence of the statement of facts. We have no criterion by which to know or ascertain the relevancy or materiality of the absent testimony.

The second bill of exceptions recites as follows: "When the state's witness Amelia Clark was on the stand, defendant, anticipating that witness would testify that defendant' was whipping his wife when deceased rushed in and interfered, asked that the jury be retired before they heard the testimony, and stated to the court that the state's witness, Amelia Clark, John Moy, and Mrs. Minerva Moy would testify to defendant whipping his wife and his cruel treatment of her (which testimony is fully set out in the statement of facts). To which, before the jury heard the same, defendant objected, because the same was irrelevant and immaterial, and calculated to prejudice the minds of the jury against defendant," etc. This bill is too indefinite to be considered. The statement of facts is not before us. It is somewhat difficult to ascertain whether he objected to the court refusing to retire the jury, or the admission of certain evidence to be found in the statement of facts in regard to the defendant's cruel treatment of his wife. What the facts were, or what connection they may have had with the case, if that is the point in the bill, is not shown. They may have been relevant. They may have been a part of the res gestæ. They may have been the very cause that led to the killing. In any event, the bill does not show any reason why the action of the court complained of is erroneous.

Another exception was taken to the introduction of some statements of appellant, testified by the witness Sharpley, as follows: "I called a woman a liar. Reilly Small and I used to hunt ducks down here on the bayou, and I could get them on the wing, and I think I can get those standing." Objection was urged to this, because irrelevant, immaterial, and too remote to connect deceased with the remark. This explanation is appended by the court to the bill: "That witness testified that defendant said: 'I have just called a woman a liar. Reilly Small and I used to hunt ducks down here on the bayou, and I could get them on the wing, and I think I can get 'em standing.' And the proof before this showed that defendant had just called Miss Moy a liar, and in the difficulty just before this, in the

Moy house, when Holland (deceased) interposed, defendant left the house, uttering a threat against deceased's life." We do not believe, as shown on the face of the bill, with the explanation, any error is made to appear. We judge from this bill that the difficulty happened "just before" the uttering of the language about which the exception was reserved, in the Moy house, where deceased interfered in a wordy altercation occurring between appellant and Miss Moy, and that, on account of this interference by deceased, defendant left the house, uttering threats against the life of deceased. Under the facts, deceased may have been sufficiently designated or pointed out as to give point to the language used by witness Sharpley. The bill is not sufficiently specific to show that error was committed. The presumption is that the rulings of the trial court are correct, and this presumption must be overcome before a reversal would be authorized. The judgment is affirmed.

Ex parte SMITH.

(Court of Criminal Appeals of Texas. June 7, 1905.)

LOCAL OPTION ELECTION-TIME OF HOLDING -PUBLICATION OF RESULT OF PREVIOUS ELECTION.

Under Sayles' Ann. Civ. St. 1897, art. 3393, relative to local option, and providing that no election shall be held within less than two years after an election has been held in the same territory, an election held more than two years after the last preceding election is not rendered invalid by the fact that the result of the preceding election was published within two years.

Application by Joseph Smith for a writ of habeas corpus to secure applicant's discharge from custody. Applicant remanded.

Mason Cleveland, Co. Atty., and Howard Martin, Asst. Atty. Gen., for respondent.

The

BROOKS, J. This is an original application for the writ of habeas corpus. facts upon which the same is predicated are as follows: The record shows that local option was adopted in Johnson county on September 13, 1901, and the order declaring the result and prohibiting the sale of intoxicating liquors was published, respectively, on October 4, 11, and 18, 1901, and on March 11 and 18, 1904, in the Cleburne Chronicle. This court held in the Stephens (87 S. W. 157) and Tump Griffin (87 S. W. 155) Cases, decided at the present term, that this election did not go into effect, because the order of the commissioners' court declaring the result, and prohibiting the sale of intoxicants in Johnson county, was not published four successive weeks, as required by the statute. A second election for local option was held in Johnson county on April 7, 1904, resulting in favor of prohibition, and appears to be regular in every way, and properly put into operation. However, the insistence is

made that the second election is invalid on account of having been held within two years from the date the result of first election was declared. Article 3393, Sayles' Ann. Civ. St. 1897, provides: "No election under the preceding articles shall be held within the same prescribed limits in less than two years after an election under this title has been held therein; but at the expiration of that time the commissioners' court of each county in the state, whenever they decree it expedient, may order another election to be held by the qualified voters of said county, or of any justice's precinct, or such subdivision," etc. We hold that the second election is valid, because the same was held after the expiration of two years from the first election. It makes no difference when the result of the election is published and put into operation. The subsequent election can be held within two years from the date the previous election is held. It follows that the second election is valid. Applicant was convicted under a complaint and information based and predicated upon the second election, held in 1904. The judgment is in proper form.

Relator is accordingly remanded to the custody of the officer.

REYES v. STATE.

(Court of Criminal Appeals of Texas. June 7, 1905.)

1. WITNESSES-IMPEACHMENT.

The state cannot impeach its own witness unless the witness has testified to something injurious to the state.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1094, 1096.]

2. APPEAL-BILL OF EXCEPTIONS-SUFFICIENOY.

A bill of exceptions showing that the court permitted the state to impeach its own witness, without showing that the witness testified to something injurious to the state, raises no question for review.

3. ASSAULT WITH INTENT TO MURDER-SPECIFIC INTENT.

Without a specific intent to kill, there can be no assault with intent to murder. [Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, § 112.]

4. SAME-EVIDENCE-SUFFICIENCY.

Where it was shown that prosecutor ran, and that accused fired his pistol, but without showing even circumstantially that he shot at prosecutor, there was nothing to show that accused committed an assault with intent to murder.

5. SAME-INSTRUCTIONS - SIMPLE ASSAULT

AGGRAVATED ASSAULT.

Where, on a trial for assault with intent to murder, it was not shown that accused shot at prosecutor, but only that prosecutor ran, and that accused fired his pistol, a charge on simple, but not on aggravated, assault should be given.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, § 658.]

Appeal from District Court, Aransas County; E. A. Stevens, Judge.

BROOKS, J. Conviction of assault to murder, with two years in the penitentiary fixed as the penalty. Bills of exceptions Nos. 1 and 2 show that the court permitted the district attorney to impeach the state witness. This cannot be done unless the witness has testified to something injurious to the state. The bills do not show that the witness had so testified-in fact, do not show what he testified. The bills are defective in this regard. Be this as it may, this character of testimony is inadmissible; and we say this in view of the fact that the case must be reversed, and the question may arise upon another trial.

Appellant insists that the evidence is not sufficient to support the verdict of the jury. We think this contention is well made. There is nothing to show that appellant ever shot at the prosecutor; and without specific intent to kill there can be no assault with intent to murder. The mere fact that prosecutor ran, and appellant shot his pistol, would not show, even circumstantially, that he shot at prosecutor. Therefore, we believe the evidence is not sufficient. Appellant also insists that the court should have submitted the issue of aggravated assault to the jury. There is no evidence showing that prosecutor was shot at. On another trial, should the evidence show that prosecutor was shot at, the court should charge on aggravated assault. If the evidence is the same as here presented, there should be a charge on simple assault, on account of the shot being fired to frighten.

The judgment is reversed, and the cause remanded.

COMER v. FLOORE.

(Court of Civil Appeals of Texas. May 24, 1905.)

1. ASSIGNMENTS-ORDERS-ACCEPTANCE.

An order to defendant to pay plaintiff the amount due the drawer to the date of the order, and that the order should be defendant's receipt for the same, constituted an assignment of the drawer's account to plaintiff; and an acceptance thereof by defendant was an agreement to pay what was due after deducting credits arising in the same transaction, or independent items mutually agreed on between defendant and the drawer.

2. JUSTICE COURT APPEAL-PLEADING.

Under Sayles' Ann. Civ. St. 1897, art. 358, providing that no set-off or counterclaim shall be set up by a defendant which was not pleaded in the court below, where a set-off was not pleaded in an action on an accepted order before a justice of the peace until after judgment by default had been entered, defendant was not entitled to plead such set-off on appeal to the county court.

Appeal from Johnson County Court; J. D. Goldsmith, Judge.

Action by John W. Floore against W. H. Comer. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

O.T. Plummer, for appellant. Ramsey & Odell, for appellee.

JAMES, C. J. The action was begun in justice's court by Floore against Comer on the following papers, filed on March 19, 1903:

"Cleburne, Texas. January 27, 1903. W. H. Comer, Esq.: Please pay to John W. Floore the amount you are due me for work and material to this date and this shall be your receipt for same. Respectfully, H. I. Malsbury.

above order any amount I find I am due "I accept the above and will pay on the Malsbury. W. H. Comer. 1-31-1903.”

"John W. Floore, Esq.: Upon settlement recently with W. H. Comer, I find he owes me for painting, canvassing and papering houses, in Cleburne and Rio Vista the sum of One Hundred and Ninety and 40/100 Dollars and I owe him to be deducted from the above the sum of Thirty-nine and 5/100 Dollars, leaving balance due me by W. H. Comer at this time and subject to the order that I gave you, and which Comer has accepted the sum of One Hundred and Fifty and 75/100 Dollars which amount is to pay you. H. I. Malsbury.

"Subscribed and sworn to before me this 9th day of March, 1903. W. R. Walker, N. P. Johnson Co., Texas."

On March 31st defendant filed an answer and a motion for new trial, and on April 6th an amended motion for new trial, which was overruled on April 7th. On appeal to the

county court, plaintiff filed an itemized, verified account in favor of Malsbury against W. H. Comer; and defendant Comer contested items in the account, and also filed an amended account showing Malsbury was owing him $131.94 at the time plaintiff claims Malsbury did the work for defendant and furnished the material to defendant mentioned in plaintiff's amended account, in addition to an item placed to his credit in plaintiff's amended account.

In his charge to the jury, the judge allowed the jury to consider in Comer's favor all items of the verified account which he (Comer) had contested, but he instructed the jury not to consider any evidence which tended to show that Malsbury was indebted to Comer. They returned a verdict for plaintiff for the full amount. By the charge, and also by a bill of exceptions, it is made clear that the court ruled that defendant, not having pleaded the set-off in the justice's court, could not do so in the county court. The order given by Malsbury was in effect an assignment of the particular account to Floore. The acceptance of it by Comer was an agreement to pay what was due on that account, which meant that account, less credits properly ap