mitting the questions. He expressed no opinion as to the character of the witness or as to the weight of his testimony. The questions were clearly admissible upon the very ground stated by the court. While the language of the court was unfortunate, it can hardly be regarded as prejudicial. If every such remark of a court in the course of a long trial were held ground for reversal, it would be almost impossible to sustain a conviction in any case. jections, to testify that the appellant and of explaining to counsel his reason for perprosecuting witness kept company with each other for about six months after the alleged seduction. The prosecuting witness also testified that she and the appellant continued acts of incontinence until the latter part of March, subsequent to the alleged seduction. The admission of this testimony is assigned as error. The testimony of the prosecuting witness touching the subsequent acts was admitted without objection. In any event, its admission was not error. State v. Robertson, 121 N. C. 551, 58 S. E. 59; Sherwood v. Titman, 55 Pa. 77. There can be no question as to the proper admission of the evidence of continued association. "The conduct and relation of the parties after, as well as before, the date of the alleged seduction may be shown. Such evidence is relevant to show that consent was obtained by promises and inducements and what they consisted of." Underhill, Criminal Evidence (2d Ed.) § 388, p. 666; 11 Encyc. of Evidence, p. 698; State v. Curran, 51 Iowa, 112, 49 N. W. 1006. [8, 9] 5. The court instructed the jury to the effect that it is the law in this state that every female person is presumed to be of chaste character, and that, when her chastity is called in question, the burden rests upon the person calling it in question to show, by a fair preponderance of the evidence, that, at the time in question, she was physically unchaste. The appellant earnestIt is argued insists that this was error. that, inasmuch as the previous chaste character of the prosecuting witness in a case of [5] 3. The court refused to permit the ap-seduction is, under our statute, one of the pellant to introduce evidence of a specific essential elements of the crime, and inasmuch unchaste act of the prosecuting witness comas every person accused of crime is entitled mitted with a man other than appellant some to a presumption of innocence, therefore the time after the alleged seduction. It is urged usual presumption of chastity does not exist that, inasmuch as the court admitted evi- in such cases. dence of illicit relations between the appellant and the prosecuting witness after the alleged seduction, the defense permitted should be as broad as the prosecution. This, of course, is usually true, but has no application to the case here presented. The evidence of subsequent acts of unchastity with other men should be excluded for the very reason that evidence of such subsequent acts with the accused should be admitted. The latter are admitted as tending to show a consent induced by a promise of marriage, because they would probably result from the same inducing cause. The former are inadmissible because the subsequent unchaste acts with other men might result solely from the breaking down of maidenly modesty by the original act of seduction. "Actual unchastity-i. e. criminal intimacy and lascivious conduct with other men existing after the date of the alleged seduction-is excluded as proof of the fact that prosecutrix was unchaste by the probability that it resulted from it." Underhill, Criminal Evidence (2d Ed.) § 392, p. 672; Mann v. State, 34 Ga. 1; State v. Wells, 48 Iowa, 671; State v. Deitrick, 51 Iowa, 467, 1 N. W. 732; Boyce v. People, 55 N. Y. 644. In State v. Workman, 66 Wash. 292, 119 Pac. 751, quoting from Cyc., we said: "When the statute makes carnal knowledge of a female of previous chaste character under a specified age rape, chastity is presumed until the contrary is proved, and want of chastity in such cases must be shown by specific acts, and not by general reputation. 33 Cyc. 1482." Though the particular point here under discussion was necessarily involved in that case, the presumption of chastity was not questioned. The quotation was cited not to that point, but to the question of the character of evidence admissible to prove unchastity. The use of the quotation can hardly be termed dictum; neither can it be held binding upon the court on the point not there under discussion. There is a sharp conflict of authority upon this question, but, after a most careful consideration of the subject, we believe that both the better reason and the more persuasive authorities sustain the view expressed in the above quotation. Both the presumption of chastity and the presumption of innocence are founded in prevailing experience. Chastity is the rule; unchastity is the excep[6, 7] 4. During the cross-examination of a tion. Innocence is also the rule; guilt is the witness for the appellant, who testified that exception. These presumptions are evidential he had taken certain liberties with the prose-presumptions. They are both, in their last cuting witness prior to the alleged seduction, analysis, competent evidence to the point inthe prosecuting attorney sought to show that the witness had been telling the story about town. This was objected to. In overruling the objection, the court remarked: "It is simply setting out the character of the witness." It is urged that this was an improper comment upon the evidence. The court evident volved. If the presumption of chastity, which is only a recognition of the prevailing purity of the women of this state, and which is indulged as to womankind in many states notwithstanding the presumption of innocence, is to give way in this state to the no more reasonable and no more sacred pre presumption of the correctness of the records, see con ought to be only upon the strongest reasons is affected or destroyed in part by the legal of public policy. Such reasons do not exist. Any unchaste woman who would institute a prosecution for seduction would readily make the prima facie proof of prior chastity by her own testimony. The defendant would then, in any event, have to meet the prima facie case. The advantage of the cynical, not to say barbarous, assumption of a lack of chastity, which would cast the burden of proof in the first instance upon the state, is too slight and chimerical to weigh in the balance against the decency of the contrary assumption. Every exigency of such a case is met by the reasonable rule that these two conflicting presumptions, both of which are, in their very nature, presumptions of an evidential character, should be submitted to the jury like other conflicting evidence. to be said that to permit the jury to be informed that there was a legal presumption of the correctness of The Supreme Court of Iowa, in a well-rea- the official books, and, if this was not permissoned opinion, approving an instruction sim-sible, then it must be conceded that the presumption of innocence is irrebuttable by any ilar to that here assailed, and, under a stat- other presumption—a proposition not to be tolerute similar to ours, said: ated in a court of law-for conflicting presumptions must always go to the jury as other Miss. 805, 811, 15 South. 66, 68, 42 Am. St. conflicting evidence.'" Ferguson v. State, 71 Rep. 492. In People v. Brewer, 27 Mich. 134, 137, Judge Cooley said: "The defendant argues that to presume in favor of the character of the woman in this case is to presume against his innocence. But, to our minds, this is not so. He will be presumed innocent of the fact-the act chargedwhilst the presumption may be in favor of the rectitude of her character. And there seems to us no inconsistency in applying these "The last error we shall notice is that the presumptions in this manner. If the prosecu- court erred in instructing the jury that the tion were held to show such a character, in law presumes a woman to be chaste until the the first instance, the lightest amount of evi- contrary is shown. We believe this instrucdence would be sufficient to make a prima facie tion to be correct. The presumptions of law case, and the burden would still be on the de- should be in accordance with the general fact; fendant; and there does not seem to be much and whenever it shall be true of any country weight in the argument, which is satisfied with that the women, as a general fact, are not this merely formal compliance with the rule, chaste, the foundations of civil society will be whilst, on the other hand, there is a sub- wholly broken up. Fortunately in our own stance in the presumption of innocence and up-country an unchaste female is comparatively rightness which requires a force of evidence a rare exception to the general rule; and whoto overcome. The above-cited cases from New ever relies upon the existence of the exception York are placed upon this same ground, ap-in a particular case should be required to prove plying the assumption to chastity in fact, and it. Crozier v. People, 1 Parker Cr. R. [N. Y.] arguing that chastity is the general law of society, and a want of it, the exception. See Crozier v. People, 1 Parker Cr. R. [N. Y.] 457. And the same argument applies with equal force to chastity of character. It does so, of course. They are the same thing, in substance, when regarded in relation to this rule. It is our opinion, that the presumption of a 'chaste character' extends to the woman in this case, and that the contrary is to be shown." Andre v. State, 5 Iowa, 389, 398, 68 Am. Dec. 708, 712; State v. Burns (Iowa) 78 N. W. 681; State v. Drake, 128 Iowa, 539, 105 N. W. 54; Crozier v. People, 1 Parker Cr. R. (N. Y.) 453. The illogical ground of the contrary view is clearly expressed by the Supreme Court of Mississippi as follows: 457; People v. Kenyon, 5 Parker Cr. R. [N. Y. 286; Kenyon v. People, 26 N. Y. 204 [84 Am. Dec. 177]; Andre v. State, 5 Iowa, 398 [68 Am. Dec. 708]; People v. Millspaugh, 11 Mich. 278. The case of West v. State, I Wis. 217, which seems to hold otherwise, was decided upon the phraseology of the Wisconsin statute, which was thought to make the 'previous chaste character' of the person seduced an ingredient in the offense, to be made out by proofs. Our statute is very simple, and merely provides that: 'If any man shall seduce and debauch any unmarried woman, he shall be punished,' etc. Comp. L. 1871, § 7697." It would seem that Judge Cooley was not favorably impressed with the view that the use of the words "previous chaste character" "It remains to consider the other ground of made any material difference. At least, he contention on this point, which is that the previous chastity must be averred in the in- did not lend it the support of his approval. dictment and established in the evidence; oth- He merely says that in West v. State, 1 Wis. erwise the presumption of the defendant's in- 217, these words were thought to be controlnocence will be overthrown by the presump- ling. It seems to us that the courts holding tion of the woman's purity. To put it otherwise, the strength of the presumption of the that there is no presumption of chastity in defendant's innocence cannot be weakened by such cases place too much stress upon the any counter presumption of womanly virtue. words "of previously chaste character," found This same view was ably urged upon our attention in the case of Hemingway v. State, 68 in many of the statutes, as in ours. Miss. 371 [8 South. 317]. We need look Bal. Code, § 2441. The previous chastity of no farther than the opinion we then delivered the female is a necessary element of the in order to silence the present contention: 'By this second proposition we suppose it is meant crime, in the sense that it is involved in the to be said that the presumption of innocence issue, in any case. Rem. & "It is not, indeed, expressed in our statute, | As said by the Supreme Court of Iowa in a as it is in the statute of New York and of some similar case: of the other states that the woman should have been of previous chaste character. But it is plainly implied. The Legislature never intended to send a man to the penitentiary for having had illicit connection with a prostitute or a woman of easy virtue, where she had consented, even under a promise of marriage." Polk v. State, 40 Ark. 482, 486, 48 Am. Rep. 17; Wilson v. State, 73 Ala. 527. This is implied from the very nature of the offense, and in the term "seduce," found in many of the statutes. If the previous chastity were not an essential element of the crime, proof of its absence would be no defense. Yet, in the absence of the words "of previous chaste character" or "of good repute," a majority of the cases support the view that, in prosecutions for seduction, the chastity of the female is presumed, and that the burden is upon the defendant to show her lack of chastity if he relies upon that defense. See note to State v. Turner (S. C.) 17 Ann. Cas. 88; Polk v. State, 40 Ark. 482, 487, 48 Am. Rep. 17; Wilson v. State, 73 Ala. 527, 534; Suther v. State, 118 Ala. 88, 24 South. 43; Weaver v. State, 142 Ala. 33, 39 South. 341; McTyier v. State, 91 Ga. 254, 18 S. E. 140; O'Neill v. State, 85 Ga. 383, 11 S. E. 856; Tedford v. U. S., 7 Ind. T. 254, 104 S. W. 608; People v. Bressler, 131 Mich. 390, 91 N. W. 639; People v. Brewer, 27 Mich. 134; Ferguson v. State, supra; Flick v. Commonwealth, 97 Va. 766, 34 S. E. 39; Mills v. Commonwealth, 93 Va. 815, 22 S. E. 863. "The questions asked the witness as to her unchastity were proper upon the cross-examination. The law raises the presumption as to her chastity, and she appeared upon the stand claiming the benefit of that presumption. In accusing the prisoner of the crime, she declared her own chastity. She was then in the position of one pressing the fact of her own purity as the ground of defendant's conviction, and, though she had not in words testified to that effect, yet her act in prosecuting defendant and the presumption of the law placed her in the position she would have occupied had she given such evidence. For these reasons the questions/propounded by defendant were proper." State v. Sutherland, 30 Iowa, 570, 573. We think the rule there announced is correct. [13] There is some hint in the record that the court excluded these general questions on account of some wrong which had, at some previous time, been perpetrated upon the prosecuting witness. There is nothing in the record to enable us to know whether the court was justified in refusing to permit these general questions for any such reason. The proper course would have been to make the offer of the evidence in the absence of the jury; thus preserving a record of the entire motive of the court in excluding the questions. His ruling upon such an offer would have saved the appellant's rights, and, at the same time, would have permitted other questions so framed as to procure a statement from the prosecuting witness as to previous acts of unchastity, exclusive of the incident vaguely referred to in the record. There is not sufficient in the record to enable us to say that the court was justified in refusing questions of this character unless the appellant would waive the incident referred to. We hold that the instruction was, in the main, correct. The court should have added, however, a statement to the effect that, if there was evidence sufficient to create a reasonable doubt as to the chastity of the prosecuting witness, there could be no conviction. [10-12] 6. On cross-examination the prosecuting witness was asked: "Who was the [14] Objections were also sustained to first person that you ever had sexual inter- questions propounded on cross-examination course with?" Upon objection, this question of the prosecuting witness as to whether she was ruled out, upon the ground that it was a had not admitted to another girl that she part of the state's case. She was also asked: had had improper relations, prior to the al"Did you ever have sexual intercourse with leged seduction, with a certain young man. any one before you came to Ellensburg?" To Objection was also sustained to a question this she answered, "No, sir," when objection whether she had taken certain indecent liberwas made and sustained, in effect, in view of ties with another young man prior to her the foregoing question striking the answer. acquaintance with the appellant. Under the These questions were objectionable, in that rule stated, these questions were proper they both failed to include the element of cross-examination in a case of this character. volition. They were not excluded, however, upon that ground. Had the objection been placed upon that ground, doubtless the questions would have been amended. They would then have been proper for two reasons: First, as going to the previous chastity of the witness, which was directly in issue; second, as In all such cases the courts, whether indulging the presumption of prior chastity or not, hold that great latitude in cross-examination should be permitted. People v. Abbot, 19 Wend. (N. Y.) 192; People v. Betsinger, 11 N. Y. Supp. 9161; Brennan v. People, 7 Hun (N. Y.) 171; State v. Johnson, 28 Vt. 512; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337; State v. Hollenbeck, 67 Vt. 34, 30 Atl. 696; Benstine v. State, 2 Lea (Tenn.) 169, 31 Am. Rep. 593; Brown v. Commonwealth, 102 Ky. going to her credibility. The presumption of previous chastity is, as we have seen, purely evidential in its nature. It carries no greater weight than if the prosecuting witness had testified to that effect. The rule limiting the cross-examination of a witness to things tes-reported as a memorandum decision without opinion Reported in full in the New York Supplement; 227, 43 S. W. 214; Creighton v. State, 41 Tex. Cr. R. 101, 51 S. W. 910. | school district between a new district formed out of the old district and the remaining area thereof should be exercised only after the necessary legal steps leading to the creation of such new district have been taken, and such apportionment is not a necessary prerequisite or jurisdictional act in the formation of such district. The prosecuting witness had testified that the appellant had seduced her by a promise of marriage. In any view of the matter, therefore, the questions propounded were proper on cross-examination as going to her credibility. State v. Coella, 3 Wash. 99, 28 Pac. 28; State v. Workman, 66 Wash. 292, | Dig. § 41.*] 119 Pac. 751; Titus v. State, 66 Tenn. (72. SCHOOLS AND SCHOOL DISTRICTS (§ 41*) – Baxt.) 132; Camp v. State, 3 Ga. 417; State v. Murray, 63 N. C. 31. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. 88 71-80; Dec. ing portion thereof and the new district would not defeat or invalidate the creation of such the county superintendent to take such action, new district, even though it were the duty of which latter question is not decided. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. 88 71-80; Dec. Dig. § 41.*] Appeal from District Court, Blaine County; C. O. Stockslager, Judge. FORMATION OF NEW DISTRICTS-VALIDITY. Where all proceedings for the purpose of [15] 7. After the evidence was closed, and dividing a school district and establishing a new district out of portions of an old one are before the jury had been instructed, the at- regular and favorable to such creation up to torney for the appellant, in the presence of and including the action of the county commisthe prosecuting attorney, asked the court to sioners, the failure of the county superintendent thereafter to apportion the bonded indebtreopen the case and permit one of the physi-edness of the old district between the remaincians who had formerly testified to be recalled. Appellant's attorney stated that the physician, only a few minutes before, had stopped him on the street, and informed him that, if recalled, he would testify that when the prosecuting witness was in his office about June 1, 1913, she told him that she had committed acts of incontinence with other men than the appellant at times prior to her first relations with the appellant, and that Action by School District No. 15 in Blaine the physician stated that up to that time he County against Blaine County, a municipai had forgotten this circumstance. The court corporation. From judgment affirming an refused to reopen the case, to which the ap-order of the Board of County Commissioners pellant excepted. There can be no question creating School District No. 61, plaintiff apbut that this evidence was competent and went to a vital issue in the case. There was nothing in the circumstances tending to show any sharp practice on the part of the appellant or his attorney in failing to introduce it at the proper time. While ordinarily matters of this kind are within the discretion of the trial court, it does not follow that even in such a case an abuse of discretion is impossible. We think, in view of the character of the charge, and the broad latitude necessarily permitted to the state in the introduction of evidence tending to support the charge, that it was an abuse of discretion to refuse to open the case for the admission of this evidence. Schonberger v. Commonwealth, 86 Va. 489, 10 S. E. 713; Dickinson v. State, 3 Okl. Cr. 151, 104 Pac. 923; Etly v. Commonwealth, 130 Ky. 723, 113 S. W. 896. For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial. peals. Affirmed. J. W. Edgerton, of Soldier, and Sullivan, Sullivan & Baker, of Hailey, for appellant. McFadden & Brodhead, of Hailey, for respondent. DAVIS, District Judge. In this action school district No. 15 in Blaine county has appealed to this court from an order of the district court of the Fourth judicial district confirming the action of the county commissioners of Blaine county in creating a new district designated as district No. 61 out of the area of said former district No. 15, without first requiring the bonded indebtedness of such old district to be apportioned by the county superintendent between the remaining area of such old district and the new district. It is stipulated that the old organized district No. 15 had created a bonded indebtedness of $4,500, and that, at the time the commissioners ordered the creation of district CROW, C. J., and MAIN, GOSE, and No. 61, there were only $700 available for CHADWICK, JJ., concur. the payment of said bonded indebtedness, and that the commissioners did not require the county superintendent to apportion said debt SCHOOL DIST. NO. 15 IN BLAINE COUN- said new district, and that she did not do so as a condition precedent to the creation of (26 Idaho, 285) TY v. BLAINE COUNTY. (Supreme Court of Idaho. July 9, 1914.) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 41*)FORMATION OF NEW DISTRICT PREREQUI at any time. The appellant claims that the county superintendent should have been required to apportion said indebtedness before the order SITES-APPORTIONMENT OF INDEBTEDNESS. The duty of the county superintendent to creating said new district had been entered apportion the indebtedness of an organized by the commissioners or affirmed by the court For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes as a part of the necessary proceedings leading up to the creation of such district, and that, in case she failed to make such apportionment before said order was entered or confirmed, she should have done so immediately afterward, and that her failure to make such apportionment would render invalid and void the attempt to create such district, and that therefore the judgment of the district court should be reversed and the order of the commissioners of Blaine county creating said new district No. 61 should be set aside and declared of no effect. school districts is vested in the county commissioners after certain preliminary steps required by law have been taken, and that the duty of the county superintendent to apportion the indebtedness of an organized school district between the remaining area thereof and a new district formed out of the old district should be exercised only after the creation of such new district by the county commissioners, and that such apportionment is not a necessary preliminary or jurisdictional act in the formation of such new district. [2] And where a district is thus created, [1] The appellant has cited authorities and and all proceedings are regular, the failure has argued earnestly that the law should be of the county superintendent thereafter to interpreted so as to require the county super-apportion the bonded indebtedness of the old intendent to apportion the bonded indebted- district between such new districts would ness between such districts, and that by rea son of her failure to do so the attempt to create said new district was invalid and void. But the first question that should be considered is as to what acts are necessary to the creation of a new school district out of portions of an old one and whether or not the apportionment of indebtedness is one of them. The law relative to the creation of new school districts in force at the time the order appealed from was entered, reads as follows (Sess. L. 1913, p. 462): "Sec. 47 (a) The board of county commissioners may, at any regular meeting of said board, create new districts, or change the boundaries of existing districts, or attach to one or more districts the territory of any district which shall have lapsed for any reason. All proceedings under this section shall be commenced by petition, which must be filed in the office of the county superintendent at least twenty (20) days preceding the meeting of the board of commissioners at which it is to be presented. All petitions, either for the formation of a new district or any other change of boundaries, shall set forth in general terms the proposed changes and shall be accompanied by and refer to, a map showing all existing boundaries of districts affected and all proposed new boundaries which will be established by the granting of such petition. (b) A petition for a new district, whether to be created from unorganized territory or in part from territory embraced within the boundaries of one (1) or more school districts or independent school districts shall be sufficient if signed by the parents or guardians of fifteen (15) or more children of school age who are residents of the proposed new district, and no further signers shall be required. In all other cases-excepting a proposed union of contiguous districts-proposing a change of boundaries of any district, the petition therefor must be signed by at least two-thirds (%) of those who are heads of families and residents of each of the districts whose boundaries will be affected by the change. No such change of boundaries or organization of a new district shall take effect until the opening of the next school year." It is evident that the law referred to does not require apportionment of a debt as a condition or preliminary to the creation of such a new district, and it is difficult to understand how the old indebtedness could effectively be apportioned before the new district has been formed. It is more reasonable to hold that the power and duty to create new not defeat or invalidate the creation of such districts, even though it be assumed that the superintendent should take such action. But since the nature of this proceeding is to test the legality of the creation of school district No. 61, it is not necessary in this opinion to interpret the law governing the duty of the school superintendent relative to the apportionment of bonded indebtedness after the creation of such new district. It appears that the order appealed from was a legal exercise of authority, and is valid in every way, and the judgment of the district court is therefore affirmed. Costs awarded in favor of respondent. AILSHIE, C. J., concurs. SULLIVAN, J., sat at the hearing, but took no part in the decision. (26 Idaho, 301) VILLAGE OF AMERICAN FALLS v. WEST. (Supreme Court of Idaho. July 18, 1914.) 1. NUISANCE (§ S2*)—ACTION TO ABATE-PARTIES-MUNICIPAL CORPORATIONS. bring an action in the district court to obtain A village is a proper party plaintiff to cial injury to the rights, morals, or interests the abatement of a public nuisance causing speof such village, even though such nuisance be outside the village boundaries. [Ed. Note.--For other cases, see Nuisance, Cent. Dig. § 195; Dec. Dig. § 82.*1 2. INTOXICATING LIQUORS (§ 41*)-LOCAL OPTION-NEWLY CREATED COUNTY. Where a new county is created from territory which was formerly comprised in "dry" counties, and also territory that was formerly part of a "wet" county, and the Legislature makes no provision as to whether the new county shall be a "wet" or "dry" county until a local option election is held in such county, held, that the whole of the new county so created becomes a "wet" county and subject to the license system until such time as the voters of the county shall vote the county "dry" under the provisions of the local option statute. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 35; Dec. Dig. § 41.*] 3. INTOXICATING LIQUORS (§ 260*)-NUISANCE -RIGHT TO ABATE-LICENSED SALOON. A saloon regularly licensed to sell intoxicating liquor within wet territory is thus expressly authorized by law to sell such liquor. And even though the results of such business |