be perceived that it becomes wholly immaterial whether the mother of the illegitimate child before, or the time it was begotten, was good or bad, chaste or unchaste. In either case the burden imposed upon the county for the support of her illegitimate child would be the same, and if only the fathers of illegitimate children begotten of women of previously chaste character could be charged with their support, then would the most lewd and licentious of both sexes be relieved from all responsibility for the maintenance and support of their illegitimate offspring.

In determining whether the defendant is or is not the father of an illegitimate child, it becomes and from the nature of the case must be immaterial whether the previous character of the mother for chastity was good or bad, as the injury to the community is the same in both cases, and therefore her character for chastity is not involved in the issue in this proceeding. If, then, her character for chastity be not involved in the issue upon the plea of "not guilty in this proceeding, it follows that if the complainant, when examined as a witness, whether in chief or upon cross-examination, denies having had carnal connection with any other man than the defendant, it is wholly immaterial to the issue whether her testimony in this particular be true or false, unless it be shown that such carnal connection with other men has taken place at or so near the time of the commencement of her gestation that it is possible that some one of such other men may have been the father of the child.

But, if the defendant can do so, it is competent for him to prove that she has had such carnal connection with other men at or so near the commencement of her gestation that one of them may have been the father of the child, for the proof of such fact would greatly weaken the force of her testimony. And in case she had on the witness stand, either in her examination-in-chief or upon cross-examination, denied that she had ever had carnal connection with other men than the accused, and she was afterwards contradicted on that point, or the fact of such connection with others about that period was proved by affirmative evidence, the force of her testimony would be weakened, if not destroyed; but to have this effect, or any effect at all to impair the

force of her testimony, the proof of this carnal intercourse with other men must be confined to a period so near the commencement of her gestation that one of such other persons could have begotten the child. Phillips v. Hoyle, 4 Gray 568; Bowen v. Reed, 103 Mass. 48; Eddy v. Gray, 4 Allen 435; Parker v. Dudley, 118 Mass. 605; Com. v. Moore, 3 Pick. 194; Sabins v. Jones, 119 Mass. 167; Ronan v. Dugan, 126 Mass. 176.

It is apparent that none of the acts of carnal intercourse with other persons than the defendant, referred to in his second and fourth bills of exceptions, took place at such a time that from such connection it was possible that any of such other persons could have been the father of the child of which the plaintiff was delivered on the 20th day of November, 1882. It follows, therefore, that the Circuit Court did not err in excluding from the jury the testimony offered by the defendant, as set forth in his first, second, and fourth bills of exceptions.

The defendant's motion in arrest of judgment was properly overruled, for there was no error or even any irregularity in the complaint, warrant, or any of the proceedings thereon, and nothing in support of this motion was offered to the trial court or suggested in this Court.

Did the court err in overruling the defendant's motion to set aside the verdict and award a new trial on account of the matters set up in his affidavit filed in support thereof? Three grounds are alleged in the affidavit for setting aside the verdict, and all of them purport to be newly-discovered evidence. The first is that "since the trial he has discovered new evidence which no degree of diligence could have secured at the former trial; that said evidence is material, and such as ought to produce upon another trial a different verdict." What the substance of this newly-discovered evidence is, or by whom it is to be proved, or where the witness resides, or why it was not procured on the former trial, or whether any effort was made or diligence used to obtain the same, or whether the same is new evidence or merely cumulative, does not appear. The second ground is that he has discovered sufficient unimpeachable evidence to show that no spelling-school was held at a certain time and place, and

that defendant was not there, as proved on the trial, but that the spelling-school was at a different time. As it nowhere appears what evidence was introduced on the trial, we are unable to perceive the relevancy or materiality of this newly-discovered fact, even if the same should be proved.

The last ground is that he has discovered new evidence proving that the plaintiff did not live in Marion county for one year next preceding the date of the birth of her child, or of her accusation against the defendant. The statute does not require that the complainant shall have resided for one year preceding the birth of her child in the county in which her complaint is made, or that the child shall be born there. It is immaterial where she lived at the time of its birth or afterwards, provided only that she shall have resided in the county in which the complaint is made for one year preceding said complaint, and that the child is not then "three years old or upwards." As the record shows the complainant was examined as a witness on the trial, the defendant had it in his power to prove by her where she lived during the year preceding the date of her complaint, if he desired to do so, and any newly-discovered evidence on this point must of necessity be merely cumulative.

The jury having found the defendant guilty, we must, in the absence of anything in the record to the contrary, presume that every fact necessary to warrant such a verdict was sufficiently proved. The character of newly-discovered evidence sufficient to authorize the court to set aside a verdict and award a new trial has been repeatedly passed upon by this Court, and we feel no disposition to depart from rules so well established and understood.

In State v. Betsall, 11 W. Va. 703, this Court established the rule that "to authorize the granting of a new trial on the ground of after-discovered evidence, four things are necessary: (1) The evidence must have been discovered since the former trial. (2) It must be such as reasonable diligence on the part of the party asking it could not have secured at the former trial. (3) It must be material in its object, and not merely cumulative, corroborative, or collateral. (4) It must be such as ought to produce on another

trial an opposite result on the merits." These rules have been approved and applied in State v. Williams, 14 W. Va. 851; Varner v. Core, 20 W. Va. 473; Dower v. Church, 21 W. Va. 23.

Applying these rules to the affidavit filed by the defendant, it is apparent that he has shown no good cause for setting aside the verdict and granting him a new trial, and his motion for that purpose was properly overruled. The judgment of the Circuit Court is therefore affirmed, with costs and $30.00 damages.

AFFIRMED.

31 450 42 61 31 450

16 240

CHARLESTOWN.

WINTERS v. NULL.

Submitted June 22, 1888.-Decided Sept. 15, 1888.

1. RECORD-APPEAL-EXCEPTIONS, BILL of.

A paper purporting to be a bill of exceptions, and copied into the record as such, will not be regarded or treated by the appellate court as a part of the record, unless the record shows that it was by some order or memorandum entered on the order-book of the trial-court made a part of the record.

2. RECORD-INSTRUCTIONS.

Instructions copied into the record, when there is no bill of exceptions or order of the court referring to them, will not be regarded as any part of the record.

W. W. Arnett for plaintiff in error.

J. B. McLure and Ewing, Melvin and Riley for defendant in error.

JOHNSON, PRESIDENT:

This was an action of trespass on the case for malicious prosecution brought in July, 1886, in the Circuit Court of Marshall county. The defendants pleaded not guilty; and the issue was tried by a jury; and on the 30th day of October, 1886, a verdict was rendered for the defendants.

Two bills of exceptions are copied into the record, the first

to the refusal of the court to permit the plaintiffs to prove certain facts. After a number of witnesses, who had been examined by the defendants, had testified to the bad character of the female plaintiff for honesty, they were asked on crossexamination, what had been said about the female plaintiff, which was the basis of her reputation; and the cross-examination elicited the fact, that it had been charged against the female plaintiff, that she had stolen articles from various persons; and the plaintiffs then asked to be permitted to put those persons, from whom it had been alleged the female plaintiff had stolen, on the stand, and prove that the charge was, in fact, false; which evidence the court refused to permit to be introduced; and the plaintiffs excepted. The second bill of exceptions was to the refusal to set aside the verdict and grant a new trial. The motion for a new trial was based on the ground that the verdict was contrary to the law and evidence, because of the exclusion of evidence, and because of misdirection to the jury. Instructions were copied into the record, but it does not appear whether they were given or refused. To this judgment a writ of error was granted.

The first error assigned is that the court refused to allow the plaintiffs below to introduce evidence tending to show that the female plaintiff was not guilty of stealing the articles, which witnesses, who had testified to her bad reputation, had heard that she had stolen. It seems that the rumor, that she had stolen certain things, was the basis of her bad reputation. It certainly would have been a violation of the rules of evidence to have admitted such evidence. 1 Greenl. Ev. § 461. It was well said by the court in State v. Woodworth, 65 Iowa 141, 21 N. W. Rep. 490, "if the defendant" (here the plaintiffs)" could have been allowed to show, by cross-examination, the foundation of the bad reports, and then, by evidence in chief, show that he was not guilty of what he had been suspected, the State should have come prepared to rebut the evidence in chief; and, under such a rule, any trial might take the form of an indefinite number of criminal accusations and defences of witnesses. It was the defendant's right, by cross-examination, to limit and define the character of the bad reports against him, and by evidence