of his previous testimony as to wholly obliterate it and destroy its effect, the court ought to grant a retrial if it believes the statement to be credible.14

§ 520. Materiality and relevancy of the newly-discovered evidence. -The accused must show by affidavits that the new evidence would have been material if it had been offered at his trial and, had it been produced and admitted, that it would have probably resulted in his acquittal.15 It must appear to the satisfaction of the court that, if a new trial is granted, it is reasonably probable that, on the introduction of the new evidence, the accused will be acquitted. If the new evidence is so weak, unsatisfactory or inconclusive, or if it is so far reconcilable with the guilt of the accused, that it will not bring about a different result, then, as a new trial would be useless, it will not be granted..

The moving party must show that the new evidence would have been admitted as relevant to show his innocence had it been offered on his former trial. The irrelevancy of the evidence alone may prevent the granting of a new trial. On the other hand mere relevancy alone is not sufficient to admit the evidence if it is incredible, cumulative, unconvincing or otherwise unsatisfactory.10

"Dennis v. State, 103 Ind. 142, 151, 23 S. E. 993; State v. Armstrong, 48 2 N. E. 349.

15

Taylor v. State, 132 Ga. 235, 63 S. E. 1116; Reyes v. State, 55 Tex. Cr. 422, 117 S. W. 152; Howell v. State, 5 Ga. App. 612, 63 S. E. 600; Weatherby v. State (Miss., 1909), 48 So. 724; Fleming v. State, 54 Tex. Cr. 339, 114 S. W. 383; Ludwig v. State, 170 Ind. 648, 85 N. E. 345; Nioum v. Commonwealth, 128 Ky. 685, 108 S. W. 945, 33 Ky. L. 62;. Gibbs v. United States, 7 Ind. T. 182, 104 S. W. 583; Washington v. State, (Tex. Cr. 1907), 105 S. W. 789; Davis v. State, 52 Tex. Cr. 149, 106 S. W. 144; Field v. Commonwealth, 89 Va. 690, 694, 16 S. E. 865; People v. Lane, I N. Y. Cr. 548, 31 Hun (N. V.) 13; Tolleson v. State, 97 Ga. 352,

La. Ann. 314, 19 So. 146; People v. Stanford, 64 Cal. 27, 28 Pac. 106; Cooper v. State, 91 Ga. 362, 18 S. E. 303; Williams v. United States, 137 U. S. 113, 34 L. ed. 590, 11 Sup. Ct. 43; State v. Foster, 79 Iowa 726, 45 N. W. 385; United States v. Smith, I Sawyer (U. S.) 277, 27 Fed. Cas. 16341; United States v. Gibert, 2 Sumn. (U. S.) 19, 25 Fed. Cas. 15204.

16 Humphrey v. State, 78 Wis. 569, 47 N. W. 836; Field v. Commonwealth, 89 Va. 690, 694, 16 S. E. 865; State v. Keaveny, 49 La. Ann. 667, 21 So. 730; Briscoe v. State, 95 Ga. 496, 20 S. E. 211. Where the new evidence presents a theory of the case utterly at variance with the statement of the accused which he made at his trial,

§ 521. New evidence impeaching merely.-A motion for a new trial ought to be denied where the evidence which the accused proposes to introduce merely impeaches that of a witness at the former trial whose evidence was credible or fully corroborated."

§ 522. The new evidence must not be cumulative merely.—A motion for a new trial on the ground of newly-discovered evidence must be denied, if it appears to the court that the evidence would have been cumulative merely if it had been introduced at the trial.18

The court must decide whether the evidence offered is cumulative. Cumulative evidence is additional evidence tending to prove facts of the same general character as those supported by other evidence previously produced. Such evidence merely repeats in substance and effect what has already been put in proof by other evidence of the same character. Thus, for example, if the accused has endeavored to prove an alibi at his trial, and for this purpose has introduced the testimony of one or more witnesses who have sworn that, at the time of the crime, he was in another place, the evidence of another witness that, at the same time, he had seen him in that place would clearly be cumulative. Or, if the issue in the trial was his insanity, and he had called medical experts to sustain his allegation of mental incapacity, the testimony of other experts to this same fact would be cumulative and inadmissible. But the new evidence is not cumulative where it is of a different kind or character from evidence given to sustain the same point on the prior trial.1o

!

State v. Rohrer, 34 Kan. 427, 8 Pac. 718; State v. Stickney, 53 Kan. 308, 36 Pac. 714, 42 Am. St. 284; State v. Gleason, 68 Iowa 618, 619, 27 N. W. 785; State v. Johnson, 72 Iowa 393, 401, 34 N. W. 177; State v. Potts, 83 Iowa 317, 319, 49 N. W. 845; State v. Whitmer, 77 Iowa 557, 560, 42 N. W. 442; Scruggs v. State, 35 Tex. Cr. 622, 34 S. W. 951; King v. State, 91 Tenn. 617, 20 S. W. 169; People v. Peacock, 5 Utah 240, 14 Pac. 332; United States v. Eldredge, 5 Utah 161, 13 Pac. 673; Casey v. State, 20 Neb. 138, 29 N. W. 264; State v. Hendrix, 45 La. Ann. 500, 12 So. 621; State v. Hanks, 39 La. Ann. 234, 236, 1 So. 458; State v. Lamothe, 37 La. Ann. 43, 44; Williams v. Commonwealth (Ky.), 18 S. W. 364, 13 Ky. L. 753; State v. Woodward, 95 Mo. 129, 8 S. W. 220; Tripp v. State, 95 Ga. 502, 20 S. E.

248; Dale v. State, 88 Ga. 552, 561, 15 S. E. 287; Greer v. State, 87 Ga. 559, 13 S. E. 552; Neill v. State, 79 Ga. 779, 4 S. E. 871; Bond v. Commonwealth, 83 Va. 581, 3 S. E. 149; State v. Starnes, 97 N. Car. 423, 2 S. E. 447; State v. Workman, 39 S. Car. 151, 17 S. E. 694; People v. Noonan, 14 N. Y. S. 519, 38 N. Y. St. 854, 60 Hun (N. Y.) 578, without opinion.

19 Fletcher v. People, 117 Ill. 184, 190, 7 N. E. 80, citing Wharton on Crim. Pl. & Practice, 870; Long v. State, 54 Ga. 564, and see People v. Leighton, 1 N. Y. Crim. 468. In People v. Lane, 31 Hun (N. Y.) 13, it was held that newly-discovered evidence of general good character was not cumulative when the accused had not offered any proof of good character on his trial though his character for veracity had been impeached.

CHAPTER XXXV.

EVIDENCE IN BASTARDY PROCEEDINGS.

$523. Bastardy proceedings-Whether $530. Variance in proving the date of

§ 523. Bastardy proceedings-Whether criminal or civil in their character. In the absence of statute at the common law no responsibility rested upon the father of an illegitimate child to provide for its care, education or maintenance, or for the expenses of the lying-in or nursing.1 But at the present time in nearly every state of the Union statutes exist casting this responsibility upon him, and providing for enforcing the same by appropriate legal proceedings, which are usually commenced at the instance of the mother.2

Moncrief v. Ely, 19 Wend. (N. Y.) 405; Birdsall v. Edgerton, 25 Wend. (N. Y.) 619; Vetten v. Wallace, 39 Ill. App. 390, 396; Glenn v. State, 46 Ind. 368, 376; State v. Tieman, 32 Wash. 294, 73 Pac. 375, 98 Am. St. 854.

2

tendent or overseer of the poor or other similar official. Where such is the case the mother has no power to prosecute the proceeding, or to appeal from any order which is made therein. People v. Ogden, 8 App. Div. (N. Y.) 464, 40 N. Y. S. 827; People v. Shulman, 8 App. Div. (N. Y.) 514, 40 N. Y. S. 779; construing N. Y. Code Cr. Pro., § 840. Cf. State v. Bunker, 7 S. Dak. 639, 65 N. W. 33.

State v. Mize, 117 N. Car. 780, 781. 23 S. E. 330, Code N. Car., § 31. Some statutes provide that the proceeding may be initiated by a superin

3

A statutory mode of ascertaining who is the father of the child and of compelling the father to assume the responsibility for its support, is a bar to a civil suit against him brought by any person who has incurred expense in caring for or supporting the child. Whether the proceedings given by the statute are civil or criminal is a question which has received much consideration in the cases. In some states the begetting of a bastard is a statutory misdemeanor; and, because of this fact, a discussion of the rules governing the procedure and the presentation of evidence in bastardy proceedings will not be out of place in this treatise. The current of the authorities favors the view that the proceedings under the statute by virtue of which the father of the bastard is compelled to contribute towards its support is a

"They (the proceedings) are partly for the benefit of the complainant, and may be instituted in her name, and partly for the purpose of indemnifying the public, and may be instituted in the name of the people." Sutfin v. People, 43 Mich. 37, 4 N. W. 509; State v. Patterson, 18 S. Dak. 251, 100 N. W. 162.

Glenn v. State, 46 Ind. 368, 376; State v. Shoemaker, 62 Iowa 343, 17 N. W. 589, 49 Am. 146; Lewis v. People, 82 Ill. 104; State v. McIntosh, 64 N. Car. 607; Millett v. Baker, 42 Barb. (N. Y.) 215; People v. Phalen, 49 Mich. 492, 494; Corcoran v. Higgins, 194 Mass. 291, 80 N. E. 231; State v. Liles, 134 N. Car. 735, 47 S. E. 750;

3 Nixon v. Perry, 77 Ga. 530, 3 S. Harley v. Jonia Circuit Judge, 140 E. 253.

4

State v. Ostwalt, 118 N. Car. 1208, 1216, 24 S. E. 660, 32 L. R. A. 396; Myers v. Stafford, 114 N. Car. 689, 690, 19 S. E. 764; construing Code N. Car., § 35; State v. Cagle, 114 N. Car. 835, 19 S. E. 766; State v. Brunson, 38 S. Car. 263, 268, 16 S. E. 1001, 37 Am. St. 752n, 19 L. R. A. 362; General Statutes, S. Car., § 1582; Georgia Code, § 4564, as amended by Act of March 20, 1866; Cady v. St. Clair Cir. Judge, 139 Mich. 618, 102 N. W. 1025, 12 Det. Leg. N. 2.

Smith v. Lint, 37 Me. 546, 547; State v. Blackburn, 61 Ark. 407, 33 S. W. 529; People v. Harty, 49 Mich. 490, 492, 13 N. W. 829; People v. Cole, 113 Mich. 83, 71 N. W. 455;

Mich. 642, 104 N. W. 21, 12 Det. Leg. N. 260; Gooding v. State, 39 Ind. App. 42, 78 N. E. 257. But compare State v. Rogers, 119 N. Car. 793, 26 S. E. 142, 143; Baker v. State, 56 Wis. 568, 14 N. W. 718; Jackson v. State, 29 Ark. 62; Semon v. People, 42 Mich. 141, 3 N. W. 304; Oldham v. State, 5 Gill (Md.) 90; Bake v. State, 21 Md. 422; Dorgan v. State, 72 Ala. 173; In re Lee, 41 Kan. 318, 21 Pac. 282; State v. Lang (N. Dak., 1910), 125 N. W. 558; Paulk v. State, 52 Ala. 427, holding that this proceeding is criminal or quasi-criminal in its character. Where the statute in terms provides that the issue of paternity shall be tried in a court which has an