23 S.E. 274 | N.C. | 1895
This is a charge of bastardy, and appeal by defendant as a pauper, under section 1235 of The Code.
Upon the call of the case the Attorney-General moved to dismiss the appeal upon the ground that the affidavit upon which the appeal was granted was insufficient. But upon examining the affidavit we find it complies with the requirement of the statute, "that he is wholly unable to give security for the cost, and is advised by counsel that he has reasonable cause for the appeal prayed and that the application is in good faith."
But it was contended that this court added another requisite to those contained in the statute, which the Court should respect as a rule of practice; that, in addition to the requirements contained in the statute, the Court had held that it was necessary that the affidavit should state the name of the counsel who gave the advice that defendant "has a reasonable cause for the appeal prayed."
But upon examination we fail to find that the court has made any such decision. In S. v. Divine,
This brings us to a consideration of the question involved in the appeal. The prosecuting witness, upon her cross-examination, testified that she had never had sexual intercourse with anyone but defendant. The defendant was examined and testified that he had never had intercourse with prosecutrix but once, and that was in December, 1892. *478
The defendant then offered to contradict the prosecuting witness by proving that she had sexual intercourse with other men about the time when the prosecutrix said the child was begotten. This was objected to, and excluded by the court.
The issue was whether the defendant was the father of the child. The prosecutrix swore he was and defendant swore he was not. But on cross-examination she swore that she had never had sexual intercourse with any other man but defendant. Defendant then offered to contradict
the prosecutrix by showing that other men had intercourse with her about the time she said the child was begotten. This testimony, that she had never had intercourse with any other man, was called out by defendant on cross-examination. It was collateral to the issue before the court, and defendant was bound by it. The evidence was (701) offered for the purpose of contradicting the prosecuting witness. This he could not do on a collateral matter that he had called out.S. v. Parrish,
But our decisions are not in harmony as to the competency of such evidence as that offered by the defendant and ruled out by the court; but, leave out of this case the fact that defendant testified that he was not the father, and we have almost the exact case of S. v. Parrish,
Error.
Cited: S. v. Warren,
(702)