mother of a bastard which was born before the marriage is its father. 26 § 527. Evidence rebutting the presumption of legitimacy.-Neither husband nor wife can testify to the fact of non-access during coverture to rebut the presumption of legitimacy in an action brought by a married woman against one whom she claims is the father of her bastard child.27 The rule is stringent and excludes all evidence, direct or collateral, from which the fact of nonaccess might be inferred.28 The fact of non-access may be established by other evidence. It may be proved that the husband was absent from the wife at the date when the child was conceived. If it appears that the husband and the wife were not living together at the time of the 26 Janes's Estate, 30 W. N. Cases out his knowledge attempted to comPa. 166. promise the matter with the mother is no evidence of his guilt. People v. Hawks, 107 Mich. 249, 65 N. W. 100. Easley v. Commonwealth (Pa., 1887), II Atl. 220; Mink v. State, 60 Wis. 583, 585, 19 N. W. 445, 50 Am. 386; Cope v. Cope, 1 Moody & R. 269; Commonwealth v. Shepherd, 6 Binney (Pa.) 283, 285, 6 Am. Dec. 449; Chamberlain v. People, 23 N. Y. 85, 88, 80 Am. Dec. 255; State v. Pettaway, 3 Hawks N. Car. 623; Rex v. Sourton, 5 Ad. & E. 180; Vetten v. Wallace, 39 Ill. App. 390, 397. The fact that the other parent is dead does not alter this rule. 1 Taylor Evidence 837, 838. The recent statutory regulations removing common law disqualifications do not remove them unless it is expressly so stated. Tioga County v. South Creek Township, 75 Pa. St. 433. The fact that the mother of the child was a single woman will be held to be sufficiently proved by her uncontradicted testimony to the effect that she was engaged to marry the defendant and that she is unmarried at the time of trial. La Plant v. People, 60 Ill. App. 340. The fact that the brother of the accused with 28 * Questions such as "Who was with you on a certain date?" or "Where was your husband on that date?" are objectionable as tending to prove nonaccess indirectly. "The presumption of the law is in such a case that the husband had access to the wife, and this presumption must be overcome by the clearest evidence that it was impossible for him by reason of impotency or imbecility, or entire absence from the place where the wife was during such time, to have had access to the wife, or to be the father of the child. Testimony of the wife even tending to show such fact, or of any fact from which such non-access could be inferred, or of any collateral fact connected with this main fact, is to be most scrupulously kept out of the case; and such non-access and illegitimacy must be clearly proved by other testimony." Mink v. State, 60 Wis. 583, on page 585, 19 N. W. 445, 50 Am. 386. alleged conception, and could not have had sexual intercourse at that date, the presumption of legitimacy is overcome. So where it appears from the evidence that the husband has been absent from the country for a period which is longer than the period of gestation of the child, as when the parties had separated years before and had since resided in cities which are widely separated, the fact of non-access may be regarded as conclusively established. 20 § 528. The relations of the parties.-Evidence of all facts which tend to prove the intimate relations which existed between the accused and the prosecutrix, including an engagement and mutual 20 walt, 44 Mich. 245, 6 N. W. 654, 38 Am. 260; Corson v. Corson, 44 N. H. 587. "That issue born in wedlock. though begotten before, is presumptively legitimate is an axiom of law so well established, that to cite authorities in support of it, would be a mere waste of time. So the rule that the parents will not be permitted to prove non-access for the purpose of bastardizing such issue is just as well settled. Many reasons have been given for this rule. Prominent among them is the idea that the admission of such testimony would be unseemly and scandalous, and this not so much from the fact, that it reveals immoral conduct upon the part of the parents, Rex v. Luffe, 8 East 193; State v. Lavin, 80 Iowa 555, 562, 46 N. W. 553, citing cases fully; Haworth v. Gill, 30 Ohio St. 627, 628; Commonwealth v. Shepherd, 6 Binn. (Pa.) 283, 286, 6 Am. Dec. 449; Watts v. Owens, 62 Wis. 512, 22 N. W. 720; Chamberlain v. People, 23 N. Y. 85, 80 Am. Dec. 255; Herring v. Goodson, 43 Miss. 392, 396; Dean v. State, 29 Ind. 483, 485; Boykin v. Boykin, 70 N. Car. 262, 264, 16 Am. 776; Pittsford v. Chittenden, 58 Vt. 49; Cross v. Cross, 3 Paige (N. Y.) 139, 23 Am. Dec. 778; Rex v. Maidstone, 12 East 550. In a bastardy case if the husband had access his impotence must be clearly proved. Commonwealth V. Shepherd, 6 Binney (Pa.) 283, 286, 6 as because of the effect it may have Am. Dec. 449; Commonwealth V. Wentz, I Ashmead (Pa.) 269, 270. "Non-access cannot be proved by either the husband or the wife, whether the action be civil or criminal, or whether the proceeding is one of settlement or bastardy, or to recover property claimed as heir at law." By the court in Dennison v. Page, 29 Pa. St. 420, 72 Am. Dec. 644n; Rex v. Book, 1 Wils. 340; Egbert v. Green upon the child, who is in no fault, but who must nevertheless be the chief sufferer thereby. That the parents should be permitted to bastardize the child, is a proposition which shocks our sense of right and decency, and hence the rule of law which forbids it." By the court in Tioga County v. South Creek Township, 75 Pa. St. 433, 436. promise to marry," is relevant.31 Thus, acts of sexual intercourse, other than the one alleged to have resulted in pregnancy,32 and opportunity for the intercourse prior to the conception, are always relevant. Advances and attempts by the accused to have sexual intercourse with prosecutrix at other times, though not successful, are always relevant to show the desire for such intercourse.3+ A letter proved or admitted to have been written by the defendant to the prosecutrix, containing expressions showing the intimacy and affection between them, is admissible." 20 Gemmill v. State, 16 Ind. App. ing witness was accustomed to sleep 154, 43 N. E. 909. with a man who could have easily Strickler v. Grass, 32 Neb. 811, been the father of the child, has been 814, 49 N. W. 804. received to impeach her credibility. State v. Read, 45 Iowa 469. 22 Ramey v. State, 127 Ind. 243, 244; 26 N. E. 818; Gemmill v. State, 16 Ind. App. 154, 43 N. E. 909; State v. Smith, 47 Minn. 475, 476, 50 N. W. 605; Harty v. Malloy, 67 Conn. 339, 35 Atl. 259; People v. Schilling, 110 Mich. 412, 68 N. W. 233. Goodwine v. State, 5 Ind. App. 63, 68, 31 N. E. 554; Harty v. Malloy, 67 Conn. 339, 35 Atl. 259; Thayer v. Davis, 38 Vt. 163; Francis v. Rosa, 151 Mass. 532, 24 N. E. 1024; Benton v. Starr, 58 Conn. 285, 20 Atl. 450. "The previous familiarity or intimacy existing between the parties was a circumstance bearing on the probability of the alleged sexual intercourse which is the subject of the prosecution. It tended to illustrate the relation of the parties to each other at the time when, as is claimed by the prosecutrix, the child to which she gave birth was begotten, and this relation has always been considered proper evidence as well for one party as the other." Thayer v. Davis, 38 Vt. 163, on page 164. Evidence that both before and after the date of the conception of the child the complain Baker v. State, 69 Wis. 32, 38, 33 N. W. 52; Walker v. State, 92 Ind. 474. The accused may be compelled on cross-examination to answer such questions relating to other acts of intercourse. State v. Klitzke, 46 Minn. 343, 345, 49 N. W. 54. 35 Williams v. State, 113 Ala. 58, 21 So. 463, 464; Walker v. State, 92 Ind. 474; Sullivan v. Hurley, 147 Mass. 387, 18 N. E. 3; La Matt v. State, 128 Ind. 123, 27 N. E. 346; Beers v. Jackman, 103 Mass. 192. "In proof of unlawful sexual intercourse, the adulterous disposition of the parties at the time may be shown. To this end, the antecedent and subsequent conduct and declarations of the parties, if it has a tendency to prove the fact, is admissible. It is a matter of common observation, that a criminal intimacy is usually of gradual development, and, when established, is likely to continue between the parties. The act itself is the strongest evidence of the existence of the disposition, and it has been recently held that for the purpose of proving it, an act of adul 36 It has been held that the accused cannot be permitted to prove that the mother had attempted to procure an abortion, though, on the other hand, she may show that he had advised her to procure an abortion, and had offered her medicine for that purpose, as tending to prove the intimate relations existing between them. 39 38 § 529. Competency and credibility of prosecutrix.-The mother is a competent, and perhaps an indispensable, witness." Her evidence is in law no less credible than that of the accused,*2 the credibility and weight of the evidence of both being for the jury. But they may consider the pecuniary interest of the accused in denying the paternity of the child as likely to affect his credibility. In the absence of any statute requiring the testimony of the prosecutrix to be corroborated, the jury may find that the accused is the father of the child upon the testimony of the mother alone, provided they shall believe it is credible.** 43 § 530. Variance in proving the date of the conception.-The precise date of the conception is not material except so far as a failure to prove it precisely on the part of the mother may invalidate tery at another time may be shown. * * * It has long been held that prior acts of familiarity were admissible to render it not improbable that the act might have occurred." By the court in Beers v. Jackman, 103 Mass. 192, p. 193. 36 Sweet v. Sherman, 21 Vt. 23, 29. 37 Miller v. State, 110 Ala. 69, 20 So. 392. 38 McIlvain v. State, 80 Ind. 69, 72; Nicholson v. State, 72 Ala. 176. testify to the absence of her husband. Evans v. State, 165 Ind. 369, 74 N. E. 244, 2 L. R. A. (N. S.) 619n, rehearing denied, 75 N. E. 651. "Reg. v. Armitage, 27 L. T. 41, L. R. 7 Q. B. 773. 42 State v. Ginger, 80 Iowa 574. 46 N. W. 657; Roberts v. State, 84 Wis. 361, 363, 54 N. W. 580; Altschuler v Algaza, 16 Neb. 631, 21 N. W. 401. 43 McClellan v. State, 66 Wis. 335. 337, 28 N. W. 347. "Olson v. Peterson, 33 Neb. 358, 50 N. W. 155; State v. McGloth'en, 56 Iowa 544, 545, 9 N. W. 893; Miller v. State, 110 Ala. 69, 20 So. 392; Evans v. State, 165 Ind. 369, 74 N. E. 244, 2 L. R. A. (N. S.) 619n, rehearing denied, 75 N. E. 651; Matteson v. People, 122 Ill. App. 66. 45 the credibility and effect of her evidence. But the act of intercourse must be shown to have occurred on such a date as will satisfy the jury that the infant, whose paternity is in question, was the result of it. 531. The reputation of the prosecutrix.-The general rule is that the reputation of the prosecutrix is irrelevant. The responsibility of the accused for the support of the bastard depends upon its paternity, not upon the good or bad reputation of the mother. Hence, the court should not permit questions to be put to her tending to prove her immoral actions with other men, merely for the sake of impeaching her, by showing her evil reputation. Under some circumstances, however, her adultery with other men may become relevant." $532. Sexual intercourse with other men during the period of gestation. The prosecutrix may be questioned as to acts of sexuai intercourse with other men when the sole object of the questions is to ascertain the paternity of the child. Any question put to her for this purpose involving her immorality with other men must relate to actions coming within a period during which the child might have been conceived. 48 show what her reputation is for truth and veracity, and thus attack the credibility of her testimony, but that is as far as he can go on questions of reputation." By the court in Bookhout v. State, 66 Wis. 415, 28 N. W. 179. 48 Humphrey v. State, 78 Wis. 569. 571, 47 N. W. 836; Ginn v. Commonwealth, 5 Litt. (Ky.) 300; Burris v. Court, 34 Neb. 187, 191, 51 N. W. 745; Davison v. Cruse, 47 Neb. 829, 66 N. W. 823; Goodwine v. State, 5 Ind. App. 63, 31 N. E. 554; Whitman v. State, 34 Ind. 360; People v. Kaminsky, 73 Mich. 637, 639, 41 N. W. 833; State v. Giles, 103 N. Car. 391, 9 S. E. 433; State v. Britt, 78 N. Car. 439, 440; Scharf v. People, 34 Ill. App. 400; Holcomb v. People, 79 Ill. 409: Easdale v. Reynolds, 143 Mass. 126, 128, 9 N. E. 13; Bowen v. Reed, 103 |