LATTIMORE, JUDGE.-Appellant was convicted in the District Court of Jasper County of the offense of assault with intent to rob, and his punishment fixed at three years in the penitentiary.

In this case it is made to appear that appellant was not represented at his trial by counsel. No bills of exception were reserved to anything there occurring. The only questions here presented are the regularity of the indictment and the charge of the court, and the sufficiency of the evidence to support the verdict of the jury. The indictment appears to be in conformity with law, and the charge of the court fully submitted the defensive theories of the appellant as well as the law of charge made against him by the State.

The facts in evidence, from the State's standpoint, show that on the date alleged appellant and a companion went into the State Bank at Buna, in Jasper County, Texas, and made pretense of wanting a draft and approached near to the cashier, who was the only other person present, and while he was filling out a blank appellant began to draw his pistol. Observing this motion the cashier fell to the floor behind. his counter and fired a pistol as a means of giving an alarm. Appellant and his companion fled but were pursued and after a sharp battle between them and the citizers and officers, in which appellant was wounded, they were captured. Shortly after their capture appellant made a written confession which appears to be in conformity with the requirements of our statute on that subject. In said confession appellant stated that he went to said bank in pursuance of an agreement and understanding had on the night preceding with two other men who wanted to participate in the bank hold-up in which he was to have his part of the proceeds. Appellant testified in his own behalf and admitted his presence in the bank on the occasion in question, but denied any intention of committing an assault or of robbing the bank, and explained the making of said confession by saying that after he was put in jail he was told by another prisoner that he would be beat up if he did not tell the officers some plausible story about the matters involved in his arrest. He contended that all of his statements in said confession were made up by him to fit the occasion and that they were untrue.

Testing the sufficiency of the evidence by the State's testimony, it would appear that an assault was committed by appellant in that he made a threatening gesture showing in itself apparently, an immediate intention coupled with an ability to commit a battery. In attempting to draw his pistol, as detailed by the cashier of said bank, there seems no question but that he went far enough to bring his actions within the statutory definition of an assault. This being true, there would remain but the question of what his intent was at the time and in making such assault. The circumstances surrounding him and his companion at the time; their flight and subsequent battle with the posse, and the statements made by appellant in his confession, would all seem to be ample evidence to support the jury's conclusion that

said assault was committed with the intent by force and by means of said assault to take from said cashier property in his possession. So believing we are led to conclude the judgment not to be without evidence in support thereof, and same will be affirmed.

Affirmed.

ELLIS WILLIAMS V. THE STATE.

No. 6611. Decided January 25, 1922.

1.-Misdemeanor Theft-Evidence-Flight-Rule Stated.

The flight of defendant, and any circumstances which may shed light on the manner and circumstances of same, is admissible in evidence, and the fact that in fleeing the defendant committed other crimes in an effort to escape would not change the rules of evidence to admit such flight. Follow ing Thompson v. State, 234 S. W. Rep., 401.

2. Same-Requested Charge-Flight.

The matter of defendant's flight and his assault upon the party injured in his effort to get away was a matter to be considered by the jury, and there was no error in refusing the requested charge not to do so.

3.-Same-Evidence-Cicumstantial Evidence.

Upon trial of theft there was no error in admitting testimony that as defendant fled he was seen to throw away an object and that it was about the size of a brick-bat and brown in color, and was about the size and color of the alleged stolen purse. Following Williams v. State, 60 Texas Crim. Rep., 53, and other cases.

4. Same-Identity of Stolen Property-Circumstantial Evidence.

Where the prosecuting witness testified for the State positively that she saw the defendant take the purse and that the purse exhibited in evidence was the one taken by the defendant, this would obviate the necessity for a charge on circumstantial evidence.

5.-Same-Sufficiency of the Evidence.

Where, upon trial of misdemeanor theft, the evidence sustained the conviction, there was no reversible error.

Appeal from the County Court of Tarrant. Tried below before the Honorable P. W. Seward.

Appeal from a conviction of misdemeanor theft; a fine of twentyfive dollars and ninety days confinement in the county jail.

The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court at Law of Tarrant County of misdemeanor theft, and his pun ishment fixed at a fine of $25 and ninety days in the county jail.

Appellant was charged with theft of a lady's purse, it being alleged that same was taken from H. C. Gaither, the owner thereof. Appellant presents five bills of exception, each of which has been carefully examined by us but in none of which do we find any matter complained of, of such gravity as to call for a reversal of this case. Mary E. Wisdom testified for the State that she saw appellant take from the counter of Mr. Gaither the alleged stolen purse, and that she followed him out on the street, overtook him and made some inquiry of him, and that he struck her and ran. She testified that various persons pursued him, and it appears from appellant's bill of exceptions No. 1 that she was asked who was running after him, and replied that one man at the barber shop, and that after he hit her everybody was excited and running after him. Appellant makes complaint that this answer of the witness brought into the case the matter of an aggravated assault by appellant upon her, and that such fact was not only immaterial but was of much prejudice to his cause. We think it proper to develop the flight of the accused and any circumstances which may shed light on the manner and circumstances of same, and that the fact that one who endeavors to flee from the scene of his crime and while doing so commits another crime in his effort to escape, would not so change the rules of evidence as to deprive the State of the right to fully show the circumstances of such flight. This matter has frequently been ruled upon by the courts. Thompson v. State, 90 Texas Crim. Rep., 15, 234 S. W., 401.

It is made to appear by bill of exceptions No. 2 that the trial court was asked by appellant to instruct the jury not to consider the testimony of Mrs. Wisdom, set out in our discussion of appellant's Bill of Exceptions No. 1. The court properly refused said request. The matter of appellant's flight and his assault upon Mrs. Wisdom in his effort to get away, was a matter to be considered by the jury, and it would have been error for the court to have instructed them to the contrary.

It was in testimony for the State that as appellant fled he was seen to throw away an object. A witness who saw him at said time testified that the thing appellant threw away was about the size of a brickbat and brown in color. He was shown by the prosecution the purse in question and asked how the size and color of the object thrown away by appellant compared to the purse shown him. The appellant's objection to this is presented in his Bill of Exceptions No. 3. We think the objection not well taken. The objection made was that the witness having already designated the color, appearance and size of the object which he saw appellant throw aside, it was but a repetition for said witness to undertake to compare same with the purse shown him. Harris v. State, 148 S. W. Rep., 1074; Law v. State, 34 Texas Crim. Rep., 79; Richardson v. State, 7 Texas Crim. App., 492; Williams v. State, 60 Texas Crim. Rep., 457.

By his bill of exceptions No. 4 appellant complains that Mr. Gaither, the alleged owner of the stolen property, was permitted to identify the alleged stolen purse, it being objected that said property had not been properly connected up by the testimony. It was also objected in appellant's bill of exceptions No. 5 that the court declined to submit the law of circumstantial evidence, the ground being that said purse. was not properly identified. We find nothing in the objections contained in said two bills of exception just mentioned. Mrs. Wisdom testified for the State positively that she saw the appellant take the purse from the counter in the store of Mr. Gaither, and that the purse exhibited in evidence and shown to Mr. Gaither was the purse so taken by appellant. This would manifestly obviate the necessity. for a charge on circumstantial evidence.

This disposes of the contentions of appellant. Mrs. Wisdom was employed by a number of merchants to watch their goods and aid and assist in detecting thefts, and her testimony as to the guilt of appellant would seem to be conclusive.

No reversible error appearing in the record, the judgment of the trial court will be affirmed.

Affirmed.

D. A. CRISPI V. THE STATE.

No. 6450. Decided January 25, 1922.

1.-Aggravated Assault-Continuance-Want of Diligence.

Where the application for continuance showed a want of diligence, and the absent testimony was of cumulative nature, there was no reversible

error.

2.-Same-Evidence-Conversion-Bill of Exceptions..

not

Where the bill of exceptions did not show that defendant was present at the time of the alleged conversation, there was no error in admitting the same in evidence.

3.-Same-Hearsay Evidence-Conversation Between Third Parties.

Where, upon trial of aggravated assault, the defendant objected to certain testimony with reference to a conversation betwen the prosecutrix and the State's witness, in defendant's absence, the objection should have been sustained. Such testimony was not admissible and was injurious to the rights of defendant.

4.-Same-Evidence-Bill of Exceptions-Hearsay Evidence.

Manifestly it would not be competent as a matter of original evidence, unless res gestae, to prove on behalf of the State that at various times after the alleged assault prosecutrix warned her friends against defendant and told them that he had hugged and kissed her.

5.-Same-Evidence-Bill of Exceptions.

Where the purpose of the witness in a visit to the defendant shed no light on any issue herein and only reflecte the complaint of prosecutrix and the feeling aroused in the witness, the same was inadmissible.

6.-Same-Charge of Court-Presumption of Intent-Indecent Familiarity.

In cases of aggravated assault, based on assault of indecent character by an adult male on a female, it is not erroneous to charge the jury on the presumption of intent to injure. Following Tubbs v. State, 50 Texas Crim. Rep., 143.

7.-Same-Requested Charge-Theory of Defense-Intent.

Where there was no need to charge upon the theory of defense unsupported by the evidence, there was no error in refusing a requested charge with reference to the intent of the defendant.

8. Same-Requested Charge-Defense Theory-Practice on Appeal.

Where no exception was taken to the charge of the court as given for failure to incorporate therein the defensive theory as to the innocent acts of the defendant, the same could not be considered on appeal, although such matter should have been presented by the court.

Appeal from the County Court of Bexar. Tried below before the Honorable Nelson Lytle.

Appeal from a conviction of aggravated assault; penalty, a fine of twenty-five dollars and thirty days confinement in the county jail.

Joe H. H. Graham and Mauermann & Hair, for appellant.

R. G. Storey, Assistant Attorney General, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court of Bexar County for criminal cases, of the offense of aggravated assault, and his punishment fixed at a fine of $25 and thirty days in the county jail.

Appellant was the manager and proprietor of a candy making establishment in the city of San Antonio, and was charged with making an aggravated assault on Miss Gravell, the State contending that on the occasion in question he caught and kissed Miss Gravell without her consent and against her will. The theory of the defense was that on the occasion in question appellant did not kiss or attempt to kiss Miss Gravell or use any indecent familiarity toward her, but that he did put his hand upon her shoulder and push her slightly to one side so that he could pass by where she was standing in a narrow passage The complaint was filed in February, 1921, and a mistrial had during March of said year. When this cause was called for trial upon a re-setting in April, appellant asked for a continuance because. of the absence of Gertrude Allen and Howard Williams. It is stated in the application for continuance that appellant had recently learned of the facts stated to be those expected from Miss Allen, and that a subpoena issued for her and placed in the hands of the sheriff had been returned without service, and that only about the time of this trial appellant learned of the fact that she was living on a certain street in San Antonio, the exact address not being known to him. We

way.