#### STATE v. ALLEN CAGLE.

Bastardy Proceedings■ — Presumptive Evidence — Instructions to Jury — Impeachment of Witness — Trial of Ch'iminal Actions.

1. In the trial of a defendant charged with, bastardy an instruction by the Court that the affidavit of the woman that the defendant was the father of the child was presumptive evidence against the defendant was proper and followed the statute, section 32 of The Code.

2. In the trial of ail action the trial Judge may hand his instructions, in writing, to the jury, and it is not error, after they have retired and requested him to do so, to send a written memorandum of certain dates necessary to be remembered in order to enable them to reach a conclusion.

3. In the trial of bastardy proceedings a witness for the State, in reply to a question on cross-examination, said, “I do not keep a bawdy-house IMd, that such answer was conclusive, and could not be contradicted by hearsay evidence as to the bad character of the witness.

4. Bastardy proceedings, being under section 35 of The Code (as held in Slate v. Burton, 113 N. C., C55, and Myers v. Stafford, 114 N. C., 234) a criminal action in respect to the fine directed to be imposed, properly stand for trial on a day set apart for the trial of criminal actions only.

*836This was a uaktahdy prooeedixg, tried before Battle, ,/., and a jury, at December Term, 1893, of’Moore Superior Co.urt ou appeal from a Justice’s Court.

Witnesses were introduced and testified in behalf of both sides. At the conclusion of the testimony the Court told the jury, that on the whole case, the burden of proof on the issue submitted, whether the defendant was the father of the child, was upon the State, but the affidavit of the woman having been introduced, that is presumptive evidence against the defendant, subject to be rebutted by other testimony which may be introduced by him ; that a proceeding in bastardy is not a criminal action; that it was not necessary for the State to prove the paternity beyond a reasonable doubt, nor, after the introduction of the affidavit, was it necessary for the defendant to prove beyond a reasonable doubt that he was not the father of the child, but this must be shown to the satisfaction of the jury, and if it was not so shown they should answer the issue, Yes; and that if the oral testimony, offered by the prosecution and the defendant, taken all together, left the minds of the jury in doubt, if their minds were brought to an equipóse, and neither side preponderated, then the presumption raised by the written examination of the woman would not be rebutted, and the issue should be answered, Yes; but that if the defendant had satisfied the jury that he did not beget the child, or if, in their opinion, there was, on the oral testimony, a preponderance.of evidence in defendant’s favor, then the issue should be answered, No.

To the above instructions, touching the burden of proof, the defendant excepted.

Second Exception. — The Judge went over to the jury all the arguments advanced bjr defendant’s counsel; that prosecutrix was of bad character, and was telling a palpable'falsehood when she said that the 'defendant had had *837intercourse with her only once; that he was the first man she had ever known, and yet she had previously had a bastard, etc.; that it was very improbable that the defendant, if he were a frequent visitor at her father’s house, should have had connection with her once and only once,'etc.; that defendant was of good character and the more credible, etc.; said 'counsel had argued to the jury that the prosecutrix had said on the trial before the Justice of the Peace that the child was begotten in July or August, 1889, and that there was a discrepancy between that statement and the contents of the affidavit or written examination of the woman — the counsel dwelling on this at considerable length. The Judge told the jury that, according to his calculation, the interval between July or August, 1889, and the date of the affidavit, January, 1893, was three years and five or six months; that she had stated (as the counsel for the defendant himself said) that the child was two years and eight months old at the time the affidavit was made, and that to this last period, if the time of gestation be added, there would be throe years and five months; that the jury would make their own calculation, and if there was a discrepancy it would tend to contradict the prosecutrix and be in favor of the defendant; if there was no discrepancy it would tend to corroborate the prosecutrix.

After the jury liad retired they sent the Sheriff to the Judge with the request that he jot down those dates for them, and the Judge wrote down on a sheet of paper the following, one of the defendant’s counsel looking on:

“1. Prosecutrix says the child was begotten in July or August, 1889.

“ 2. The affidavit is dated in January, 1893.

“ 3. She says the child was two years and eight months old at the time the affidavit was made.”

The said counsel said to the Judge that he did not object *838to the two lost memoranda being sent to the jury, but did object to the first one being sent them. The Judge, remarking to the attorney that his argument on this point was based on the fact that the prosecutrix had said the child • was-begotten in July or August, 1889, told the Sheriff to take the paper to the jury, the paper with all three memo-randa on it, which he did.

To this the defendant excepted.

Third Exception. — In charging the jury the Court told them the issue was whether the defendant was the father of the bastard — not whether this Thomas McNeill kept a bawdy-house — and said McNeill’s answer to the question about the bawdy-house was conclusive as to that matter, by which it was sought to impeach him. At the time this was stated to the jury the defendant did not enter any objections. The defendant did except after verdict and filed written exceptions, and in his case on appeal, a verdict having been returned against the defendant, he moved for a new trial on account of the alleged errors above assigned. Motion overruled, and defendant excepted.

Fourth Exception. — This case was tried on Monday, the first day of the term, but no objection to that was made by the defendant till after the verdict had been rendered. He then moved to set aside the verdict on that account, the statute (Acts 1891, ch. 277) providing that the first three days of this term shall be devoted to the trial of criminal actions only. The Court held that this objection, not being-taken until after verdict, was waived, and the motion was overruled. The defendant excepted. For the same reason the defendant moved in arrest of judgment. Motion denied, and defendant excepted. For the same reason defendant,moved to dismiss the action for want of jurisdiction. Motion denied, and defendant excepted.

Judgment against defendant, from which he appealed.

*839 The Attorney General, for tlie State.

Mr. W. 0. Douglass, for defendant (appellant).

MacRae, J.:

His Honor followed the statute (The Code, §32) when he instructed the jury that the affidavit of the woman was presumptive evidence against the defendant. If presumptive it might be rebutted by testimony; if not rebutted the preponderance upon the issue of paternity was on the side of the State, and there could be no even balance. State v. Williams, 109 N. C., 846; State v. Rogers, 79 N. C., 609.

The second exception cannot be sustained. The Judge may now by statute hand his charge in writing to the jury; surely he may at their request send them a memorandum of certain dates necessary to be remembered in order to enable them to reach a conclusion. Only one item of this memorandum was objected to by defendant’s counsel, and this item was necessary to enable the jury to understand the others.

The third exception was taken in apt time, but is not sustained. The witness Thomas McNeill, the father of the prosecutrix, was testifying for the State, and, in reply to a question upon his cross-examination, said: “I do not keep a bawdy-house.” The defendant afterwards offered a witness who testified that the character of Thomas McNeill was not good, and the Solicitor asked him on cross-examination, “What is it bad for ? ” The reply was, “ It is bad for keeping a bawdy-house.” If McNeill’s testimony on this point could have been'contra dieted it must have been b}r direct testimony' and not by hearsay evidence as to his character. The question was for no other purpose than to impeach his whole testimony. The answer was a direct and positive denial, and was conclusive unless contradicted by testimony other than that as to character.

*840The last exception has been disposed of by the ruling of this Court in State v. Burton, 113 N. C., 655, and Myers v. Stafford, at this Term, where it was said in substance that a bastardy proceeding is an anomalous one since the Act of 1879, being civil in safar as it seeks to hold the defendant liable for the support of the child, but that by virtue of said act, section 35 of The Code, it is criminal in its nature as regards the fine directed, to be imposed.

It properly stood for trial on the day when it was tried.

No Error.