The questions must indicate explicitly the time and place of the sexual intercourse and the name of the person with whom it is alleged that it was indulged in.** 49 If the woman denies the sexual intercourse, it may be proved by the testimony of a man who can testify that she has had intercourse with him.5" And on the other hand it is relevant to prove that, prior to the date of the conception, the mother had received no attention from any man except the accused."1 The length of the period over which the inquiry into the illicit relations of the prosecutrix with other men may extend is not definitely fixed by the cases. A great deal depends on the circumstances of each case, and particularly on the obstetrical facts as they appear from the medical testimony or otherwise. In the majority of cases it is futile to extend the inquiry more than three weeks later or earlier than the probable date of the conception of the child. If we assume that the length of the period of gestation is about ten lunar months or nine calendar months, or say about two hundred and eighty days, a question as to intercourse with any other man at a date month or more prior or subsequent to the beginning of the period of gestation would clearly be inadmissible, unless it is also shown that the illicit in Mass. 46; Commonwealth v. Moore, 3 1901), 95 N. W. 1053; Guthrie v. State (Neb. 1901), 96 N. W. 243. “In this class of cases an innovation has been made on the strict rules of crossexamination, so far as to permit the defendant to ask the woman whether. within the period of gestation, she has had intercourse with other men." By the court in Holcomb v. People, 79 Ill. 409. 19 Meyncke v. State, 68 Ind. 401. State v. Read, 45 Iowa 469; People v. Kaminsky, 73 Mich. 637, 639, 41 N. W. 833; McCoy v. People, 65 III. 439; Williams v. State, 113 Ala. 58, 21 So. 463, 465; State v. Perkins, 117 N. Car. 698, 23 S. E. 274, or by her admissions in writing. Walker v. State, 165 Ind. 94, 74 N. W. 614. 51 Curran v. People, 35 Ill. App. 275 timacy existed between the same persons at or very near to the time of conception.52 If the prosecutrix is proved to have indulged in promiscuous sexual intercourse with other men at or about the date she alleges the child was conceived, she will not be permitted to state while on the stand that she became pregnant as the result of any particular act of intercourse. Her testimony on that point would be merely an inference. If she had submitted to the embraces of several men on or about the same date, it is impossible for any person, in view of her physical organization and for physiological reasons, to state positively who is the father of the child, however readily paternity may be determined when sexual intercourse with only one man is in question.53 § 533. Admissibility of the admissions and declarations of the parties. In some of the states the declarations of the mother of the child made during her travail and which are continued or persisted in subsequently, and which charge a particular person with its paternity, are received as original evidence both for and against the accused. Whether declarations of this sort are receivable in the absence of a statute is an undecided point. Some authorities hold that they are not admissible either to corroborate 82 54 State v. Phillips, 5 Ind. App. 122, 31 N. E. 476; Ronan v. Dugan, 126 Mass. 176, 177; State v. Granger, 87 Iowa 355, 54 N. W. 79; Duck v. State, 17 Ind. 210; Olson v. Peterson, 33 Neb. 358, 50 N. W. 155; Scharf v. People, 34 Ill. App. 400; Sabins v. Jones, 119 Mass. 167. In a recent case where the child was born on the 8th day of June, 1888, the prosecutrix was required to answer the question, "Did you have sexual intercourse with any other man than the accused at any time between August 10 and November 1, 1887?" Pike v. People, 34 Ill. App. 112; and see, also, Swisher v. Malone, 31 W. Va. 442, 7 S. E. 439. It is the exclusive right of the jury to determine the probable length of the period of gestation as a question of fact on the circumstances of the case. Davison v. Cruse, 47 Neb. 829, 66 N. W. 823. 53 'Baker v. State, 47 Wis. 111, 2 N. W. 110. "Mass. Public Stat., c. 85, 16 Maine Rev. Stat., c. 97, section 6; Robbins v. Smith, 47 Conn. 182; Scott v. Donovan, 153 Mass. 378, 26 N. E. 871. Contra, State v. Tipton, 15 Mont. 74, 38 Pac. 222; Richmond v. State, 19 Wis. 307. The expression used in one statute is, "having been put to the discovery of the truth of such statement at the time of her travail." Wilson v. Woodside, 57 Maine 489; Burns v. Donoghue, 185 Mass. 71, 69 N. E. 1060. her testimony or as evidence directly on the issue.55 But elsewhere it has been held that statements made, both before and after the birth of the child, that the accused is its father, should be received.5 Declarations are to be regarded as made during travail, if they are proved to have been uttered between the instant that the pains of labor begin and the moment when the delivery of the child is completed by the severance of the umbilical cord.57 They will be admitted though the child is born subsequently to the making of the charge against the defendant.58 The admission of the prosecutrix that another man is the father of the child is receivable as a contradictory statement for the purpose of impeachment. 59 60 But the statements of third persons as to the paternity of the child not made in her presence and constituting no part of the res gesta of any relevant act are never received. On the other hand all the utterances of the accused having any bearing on his relations with the prosecutrix, as, for example, his promise to marry her, are admissible against him." State v. Hussey, 7 Iowa 409; Sidelinger v. Bucklin, 64 Maine 371, 373; State v. Lowell, 123 Iowa 427, 99 N. W. 125; Sidelinger v. Bucklin, 64 Me. 371; Ray v. Coffin, 123 Mass. 365; State v. Spencer, 73 Minn. 101, 75 N. W. 893, 76 N. W. 48; Stoppert v. Nierle, 45 Neb. 105, 63 N. W. 382; Wilkins v. Metcalf, 71 Vt. 103, 41 Atl. 1035. Harty v. Malloy, 67 Conn. 339, 35 Atl. 259; Benton v. Starr, 58 Conn. 285, 20 Atl. 450; Welch v. Clark, 50 Vt. 386; Baxter v. Gormley, 186 Mass. 168, 71 N. E. 575. 58 61 Bowers v. Wood, 143 Mass. 182. 184, 9 N. E. 534. Houser v. State, 93 Ind. 228; E N. E. v. State, 25 Fla. 268, 6 So. 58; Johnson v. People, 140 Ill. 350, 29 N. E. 895; Meyncke v. State, 68 Ind. 401; People v. White, 53 Mich. 537. 19 N. W. 174. The admissions of the prosecutrix as to the paternity of the child ought to be received with extreme caution. Morris v. State, 101 Ind. 560, 562. A statement by the prosecutrix that it is necessary for a woman to get in the family way in order to procure a husband is not admissible as impeachment. Johnson v. People, 140 Ill. 350, 29 N. E. 895. Prince v. Gundaway, 157 Mass. 417, 418, 32 N. E. 653; Benton v. Starr, 58 Conn. 285, 20 Atl. 450. Some of the statutes require that an accusation made during pregnancy shall be continued in subsequently. This requirement that the mother shall be constant refers only to the name of the man who is accused. A variance as regards the time, place or other circumstance of the intercourse will not render the declaration incompetent, though perhaps affecting its credibility." In conclusion it may be said that the mother is a competent witness to prove her own declarations, though such evidence may be more valuable and convincing if coming from another witness."* 63 § 534. Evidence of the preliminary examination.—When, prior to the trial, a preliminary examination is had, the record thereof may be given in evidence in favor of either party at the trial, and, if lost, the contents may be proved orally by testimony from the prosecutrix or any other person who was present. But the judgment in an action, brought by the mother to recover damages for her seduction, is not competent to prove the paternity of the child in a subsequent bastardy proceeding. 69, 20 So. 392. Evidence by the phy- 199. 64 66 65 islature and was intended to be guarded against by placing the witness in such circumstances at the time of her accusation as would in all probability insure her veracity. In the time of her utmost peril, with the fear of death and judgment before her eyes, it was wisely thought that a false accusation would rarely if ever be made; upon the same principle that the declarations of a person in extremis which may affect the life of a Reed v. Haskins, 116 Mass. 198, party accused of murder are admitted, Murphy v. Spence, 9 Gray (Mass.) 399. "The general object was to give competency to a witness, who, by the general rule of evidence, would be excluded as interested, in a case in which, without such evidence, the mischief intended to be cured would be irremediable. The danger of such evidence was not overlooked by the leg $535. Evidence of compromise or settlement.-Inasmuch as a proceeding to affiliate a bastard child is generally regarded as in the nature of a civil action, no objection, either in law or upon the ground of public policy, can exist to prevent a compromise or extra-judicial settlement between the parties. A note given to settle such an action is valid and based on good consideration, and cannot be invalidated on the grounds that such a compromise is against public policy, or contrary to good morals. The primary object of the proceeding is not to determine the paternity of the child, but to compel its father to provide for its support. If, therefore, the defendant is willing to do this voluntarily, the proceedings ought to be dismissed; for if the action is brought to a termination, favorable to the complainant, the defendant cannot be compelled to do any more.❝s 67 Hence, it is always relevant to show in evidence that the defendant has voluntarily recognized the claim of the illegitimate child, and has entered into an agreement by which he is effectually bound to provide for its care and support, and for the lying-in and nursing expenses and medical attendance of the mother. "Billingsley v. Clelland, 41 W. Va. 234, 23 S. E. 812. * See People v. Wheeler, 60 Ill. App. 351. |