The certificate of the district clerk transferring the case from that court to the County Court is in substantial compliance with the provisions of the statute, and hence the court did not err in overruling defendant’s objections inlimine based upon supposed defects in the same. Code Crim. Proc. art. 437; Coker v. State, 7 Texas Ct. App. 84.
Without a bill of exceptions reserved to the overruling of an application for continuance the ruling will not be revised. A recital in the judgment that the application was overruled and defendant excepted will not answer in lieu of a specific bill of exceptions. Nelson v. State, 1 Texas Ct. App. 41, and authorities cited. In the Rules for the government of proceedings in the District Court it is expressly provided that “the rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon admission or rejection of evidence, and upon other proceedings in the case hot embraced in Rules 53 and 55, when sought to be complained of as erroneous, must be presented in a bill of exceptions signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise. Rule 55a.
In the case before us the judge did not sign or approve the bill. But, had the bill of exceptions been properly signed and approved the application, we think, would still be wanting in diligence. It is stated that the witness on account of whose absence it was sought resided *146eleven miles from the county seat, and that she had accepted service of the subpoena issued for her on the very morning of the trial. It is not shown whether at the time of the acceptance of service the process was in the hands of the proper officer, or not. Such fact might be necessary to establish a proper service by acceptance, in order to hold the witness hable for contempt in case of disobedience, if, indeed, a witness can render himself hable for punishment when the service is by acceptance.
Be that as it may, the service of the subpoena on the day of the trial, eleven miles from the court-house, and the witness too in bad health, does not show proper diligence; and would not, according to Mr. Greenleaf, even had the witness been in good health. He says “the service of a subpoena upon a witness ought always to be made in a reasonable time before trial, to enable him to put his affairs in such order that his attendance upon the court may be as little detrimental to his interest as possible. On this principle a summons in the morning to attend in the afternoon of the same day has been held insufficient, though the witness lived in the same town and very near to the place of trial.” 1 Greenlf. Ev. sec. 314. Whilst we are not prepared to indorse the position stated in the last sentence,— for that might be carrying the rule too far,— still we think that proper diligence would require the service and notice of more than part of a day where the residence of the witness is remote.
The technical accuracy of the charge in its use of the terms “aggravated assault” and “aggravated assault and battery,” as though they were interchangeable and convertible terms, is also complained of. This case was discussed in the case of Kennedy v. State, decided at" the present term, and they were held synonymous as used in our statute. Ante, p. 73.
Another objection urged is that the fact that defendant was an adult male was not explicitly proved. An exam*147ination of the statement of facts will show that no question or controversy whatsoever was raised with regard to the matter, and where there is no question of the kind availed of in the court below nor suggested by the facts in evidence, the case will not be reversed for want of specific proof of the fact. Tracy v. State, 44 Texas, 9; Veal v. State, 8 Texas Ct. App. 476.
A special instruction requested in behalf of defendant was properly refused by the court. This instruction was with reference to the degree of force permissible in repelling violence offered to the property of another. Besides being obnoxious to the imputation that the instruction was upon the weight of evidence, it was also repugnant to the statute which provides that “where violence is permitted to effect a lawful purpose, only that degree of force must be used which is necessary to effect such purpose.” Penal Code, art. 491.
• We see no error in the record, and the judgment is affirmed.
Affirmed.