* *

think that the reverse of this proposition is true. The difficulty in the practical working of the construction contended for has been apparent to the learned counsel for the defendant and he has not inaptly asked, 'Is it to be a race for the diligent between the city and county, to see which shall first exhaust the combined debt limitation?' To obviate the difficulty he presents an ingenious solution of the problem. He claims that the limitations on county and city are distinct, but that in estimating the capacity of the county to contract debt, only the real estate of the county lying without the city is to be reckoned. There are several objections to this construction. It would require us to import into the constitution words that are not there; that is, after 'county' the qualification, 'excluding therefrom the real estate in any such city.' This is not admissible." In affirming the same case, the court of appeals of New York, said: "As the reasons in support of the conclusions reached have been very fully and clearly stated by the learned judge who gave the opinion at the general term, in which we fully concur, it is quite unnecessary for us to enter into any lengthy discussion of the question." Adams v. East River, etc., 32 N. E. 622.

Perhaps the most strikingly analogous cases to be found are those construing a constitutional provision of the state of Illinois almost identical with the one here under consideration. It reads: "No county, city, township, school district or municipal corporation shall become indebted in excess of five per centum on the taxable property," to be ascertained in a like manner. The supreme court of the United States had this Illinois constitutional provision under consideration in the case of Buchanan v. Litchfield, 102 U. S. 278, where the basis for the computation of the five per centum limitation was held to be upon the whole amount of taxable property within the corporation's limits; and while the precise question here raised seems never to have been directly decided in Illinois yet by a long line of decisions the supreme court of that state construes the section in analogy with the construction given the New York constitutional provision in Adams v. East River

Co., supra; Doon Township v. Cummings, 142 U. S. 366; C. & A. R'y Co. v. People, 40 N. E. Rep. 602; Lawrence v. Co. Collector, 27 N. E 197; Law v. People, 87 Ill. 385; Prince v. City of Quincy, 105 Ill. 143; Howel v. City of Peoria, 90 Ill. 197; Thatcher v. People, 93 Ill. 243; Fuller v. Heath, 89 Ill. 290; Peck v. Williamson & Co., 50 Pac. 236.

The case of the City of Guthrie v. Vienna Bank, 38 Pac. Rep. 4, cited does not support appellant's contention, but on the contrary, is in line with the cases above cited. Indeed, we find no cases which by any process of reasoning can be said to give force to appellant's argument. In the courts of highest resort of the states of New York, Wisconsin, South Carolina, and probably others, where we find adjudicated this precise question, arising under similar prohibitory laws, the power of each enumerated corporation to incur an independent indebtedness for its own corporate purposes not to exceed the limited rate on the assessed value of the taxable property within its limits is declared to exist; and no different inference can be fairly drawn from the reasoning of the supreme court of the United States or from any of the cases decided in the state courts above cited. Cases supra, and State v. Common Council, 71 N. W. Rep. (Wis.) 87; Todd v. City of Lawrence, 26 S. E. Rep. (S. C.) 682.

We perceive no reason why this construction is not applicable to the federal limitation act, and must therefore answer the first question arising thereunder in the affirmative, and hold that the municipal and political corporations enumerated therein may each independently of any other and regardless of the fact that two or more may cover the same territory in whole or in part incur an indebtedness not to exceed four per centum on the value of the taxable property therein situate, as ascertained by the last assessment for territorial and county purposes.

This brings us to the final question: Is the board of education of the town of Eddy a political or municipal corporation or other subdivision of a territory within the mean

MUNICIPAL Cor. poration.

ing of the federal limitation act?

This court

at this term has decided that by section 1564, Compiled Laws of New Mexico, 1897 (Sec. 8, Ch. 77, Laws of 1891), the territorial legislature created the boards of education of the cities of this territory independent municipal corporations, for school purposes, and since that section refers in like language to boards of education of the towns of the territory, there is no escape from the conclusion that the board of education of the town of Eddy is also an independent municipal corporation. Water Supply Company v. City of Albuquerque et al., 54 Pac. 973.

Paragraph 2 of the answer, for the reasons given, being insufficient as a legal defense, we hold the demurrer thereto to have been properly sustained.

The appellee having remitted thirty-nine and thirty-five hundredths dollars of the sum for which judgment was rendered below, the cause is affirmed for $135.65, with interest and costs, and the district court of Eddy county directed to enter the judgment as here modified.

Mills, C. J., Parker and McFie, JJ., concur; Leland, J., not sitting.

[No. 790. August 28, 1899.]

TERRITORY OF NEW MEXICO, Appellee, v. GERONIMO PINO, Appellant.

SYLLABUS BY THE COURT.

CRIMINAL LAW-CONFLICT OF EVIDENCE-VERDICT-CONCLUSIVENESSPROSECUTRIX-IMPEACHMENT OF CHARACTER FOR CHASTITY—EVIDENCE REQUIRED-INSTRUCTION-REFUSAL-ERROR.-1. In a crim

inal case, where there is neither an absence of competent evidence against the accused nor a decided preponderance in his favor, and there is a direct conflict in the testimony, the jury's verdict is a conclusive adjudication of the facts of the case.

2. The character of the prosecutrix for chastity may be impeached only by general evidence of her reputation, and not by evidence of particular instances of unchastity.

3. The refusal of the court to give an instruction properly requested by defendant which is a correct statement of the law applicable to the facts in the case and consistent with a reasonable theory other than that of defendant's guilt, and not covered by any other instruction which was given by the court is reversible error.

Appeal, from a judgment of the Fifth Judicial District Court, Socorro county, convicting defendant of rape. Reversed and remanded.

The facts are stated in the opinion of the court.

A. A. FREEMAN for appellant.

An appeal brings up for review the entire cause, both as to the law and the facts in the case. Wiscart v. Dauchy, 3 Dall. 326; Crooly v. O'Brien, 24 Ind. 325; Wiles v. Railroad, 24 N. Y. 443; Owen v. State, 35 Tex. 361; Williams v. Townsend, 15 Kan. 429; Martin v. Martin, 45 Pac. Rep. 813; Lee v. State, 71 Ga. 260; Hammond v. Wadhaus, 5 Mass. 354; Bronson v. Caruthers, 49 Cal. 331; Kinne v. Kinne, 9 Conn. 105; Armstrong v. State, 17 L. R. A.; Guerno v. Ballerno, 48 Cal. 121; Spohn v. Railroad, 87 Mo. 84; Newsome v. Lycan, 3 J. J. Mar. (Ky.) 440; Collins v. Railroad, 12 Barb. 492; New Orleans Railway Co. v. Statham, 97 Am. Dec. 493; Gatling v. Wilcox, 26 Ark. 314; Badeen v. Baca, 2 N. M. 196; McCarroll v. Stafford, 24 Ark. 228; Hall v. Page, 443; Shephard v. Burkhalter, 13 Ga. 445; Lee v. State, 71 Ga. 260; Kerr v. People, 110 Ill. 627; Graham v. People, 115 Id. 566; McDaniel v. State, 53 Ga. 215; Earp v. State, 50 Id. 514; Gifford v. People, 87 Ill. 213; Territory v. Adolphson, 5 Pac. Rep. (Mon.) 256.

In determining the weight of testimony, this court will not be controlled by either the number of witnesses or the positiveness with which they swear, but will exercise the right to inquire into the probable truth of the testimony. Mayne on New Trials, sec. 226, p. 367; Landsman v. Thompson, 22 Pac. Rep. 1150; Baker v. Insurance Co., 21 Pac. Rep. 357;

People v. Ardage, 51 Cal. 371; State v. Scholl, 32 S. W. Rep. 968; Hall v. Page, 4 Ga. 443; Shepard v. Berkhalter, 13 Id. 443.

We have a statute which requires this court to look into the entire record, "and on the facts thereon contained alone" to reverse or affirm the judgment. No case can be found in this territory in which this court has declined to reverse on the ground that it did not possess the jurisdiction. Territory v. Yarberry, 2 N. M. 257; Hicks v. Territory, 6 Id. 596; Territory v. Webb, 2 Id. 157; Territory v. Williams, 54 Pac. Rep. 232; Faulkner v. Territory, 6 N. M. 490.

The testimony in this case shows, if it shows anything, that the defendant did not commit the offense with which he was charged, but that he committed an assault on the prosecutrix. Hardtke v. State, 67 Wis. 552.

EDWARD L. BARTLETT, solicitor-general, for the territory.

No objections or exceptions appear in the record to the giving of the instructions numbered from 1 to 10, and, under the law and decisions of this court, none of such instructions can be charged as erroneous or considered in this court. Comp. Laws 1897, secs. 3139, 3145; Thompson v. Ditch & Reservoir Co., 53 Pac. Rep. 507; Hanna v. Mass., 122 U. S. 26; Padilla v. Territory, 8 N. M. 562; Territory v. Rudabaugh, 2 Id. 222; Clune v. United States, 159 U. S. 594.

It was exclusively for the jury to judge from all the facts and circumstances the interest that the witnesses had in the result, and the weight to be given to their evidence. Territory v. Edie, 6 N. M. 565; People v. Ah Loy, 10 Cal. 301; State v. Hert, 89 Mo. 591; Bailey v. Commonwealth, 82 Va.

107.

rape.

CRUMPACKER, J.-Geronimo Pino was indicted for The indictment charged that the defendant on the thirtieth day of August, 1893, ravished one Andrea Cordova. The defendant was found guilty. Motions for a new trial