The opinion of the court was delivered by
Peck, J.
The evidence introduced on the part of the defense,, tending to show sexual intercourse by the plaintiff with others than the defendant, and acts of indecent familiarity with them, tending, as was claimed, to show such intercourse, outside of the time within which, according to the course of nature, the child in. question could have been begotten, was improperly admitted. Evidence of this character is limited to such acts within the time the child could have been begotten. This evidence was not rendered admissible by the inquiries as to such acts having been first. made of the plaintiff on the stand, and her denial of them. The defendant had no right to make such inquiries, and, when made, the plaintiff had her election to answer or not, as she pleased. Her answering without objection does not give the defendant the right to introduce evidence to contradict her answers; not even for the purpose of impeaching or discrediting her testimony. The-[91]*91defendant, having made the inquiries of her as to such collateral matter, must take such answers as she gives ; at least, he can not introduce evidence to contradict her in this respect. We understand this to be not only in accordance with the principles of evidence, but in conformity to the long and well settled practice in prosecutions for bastardy. In Commonwealth v. Moore, 3 Pick., 194, which was a prosecution for bastardy, such evidence was offered on the part of the defense, and claimed to be admissible, not only as tending to impeach the credit of the mother as a witness, but also as tending to show that the defendant was not the father of the child, and it was held to be clearly inadmissible.
The error is not cured by the direction of the court to the jury in the charge, not to consider it, as it had no tendency to show that the defendant was' not the father of the child. It had already had its influence on the minds of the jury, and it would be extremely improbable, if not impossible, that'the jury could know what their conviction would have been on the material fact, had this evidence not been in the case. This point was decided in Conn. & Pass. R. R. R. Co. v. Baxter, 32 Vt., 805, where the reasons are well assigned. It was proper for the court to give such instructions after they had discovered the error, because it might have some influence in removing the impression created by that evidence, and had the verdict been the other way, the error would have become immaterial. But as the verdict was for the defendant, the error is not cured.
The objection to the defendant’s offer to show by Dr. Whitcomb that the plaintiff applied to him for medicine to procure an abortion, and to show by Mrs. Brown that the plaintiff attempted to procure an abortion and what the plaintiff said ón that subject, ought to have been sustained, and the evidence excluded. And the court erred in charging the jury that it was evidence tending to contradict and discredit the plaintiff and her mother. This was decided in Sweet v. Sherman, 21 Vt., 23. In that case, the defendant 'offered to prove such fact both by inquiring of the plaintiff on cross-examination, and by a physician introduced by the defendant, and it was held that it was properly excluded. In the opinion in that case it is said, that it had no tendency to prove [92]*92whether the defendant was the father of the child, and that it could not be claimed as proper matter by way of impeaching the plaintiff as a witness. The fact of an attempt to procure an abortion being wholly immaterial to the issue on trial, if the defendant chooses to make such inquiry on cross-examination, and the witness chooses to answer, the defendant must be content with such answer as he gets.
The indecent question put to the plaintiff by Mr. Flanders and her reply, should have been excluded by the court. The plaintiff would naturally repel such a question in the shortest possible way, and her reply furnishes no just ground of inference .against her.
But it is insisted by the counsel of the defendant, that the evidence of Wilbur N. Thurston as to what transpired at the defendant’s house in February, 1865, was properly admitted. This transaction was not within the time the child could have been begotten, as the child was born March 4, 1866. If actual intercourse with others than the defendant, outside of the time the -child could have been begotten, is inadmissible, clearly indecent familiarity with the witness, outside of that time, must be incompetent. It is claimed that the evidence of this witness tends to prove sexual intercourse between the plaintiff and Carlos Thurston 'on that occasion. The deportment between Carlos Thurston and the plaintiff to which this witness testified, claimed to be suspicious, is that, in the evening, those two left the room where the rest of the company were, and went into the back room, and were gone about ten minutes. Divesting the case of the inadmissible evidence with which it was incumbered, this circumstance can hardly be said to be any evidence of sexual intercourse on that occasion. But if any evidence at all, the presumption must be extremely slight. But in any view of it, not being within the time the child could have been begotten, it was of itself alone incompetent evidence. But it is claimed that this evidence of Carlos Thurston and the plaintiff going into the other room together, is rendered admissible by other evidence in the case. It appears that the plaintiff had testified that she took her bundle of clothes between two and three o’clock in the morning June 2, [93]*931865, and left tbe defendant’s bouse where she had resided since sis years old, and started for her mother’s some sis or eight miles from there, and on her way passed by Thurston’s where Carlos Thurston lived. There was evidence that she then knew that Mrs. Thurston was absent from home. It is insisted that the testimony of Mrs. Brown, to the effect that the plaintiff told her that, after leaving the defendant’s house on that occasion, she went to-Mrs. Thurston’s barn and staid till morning, and stopped at Mrs. Thurston’s house and got breakfast for Carlos Thurston (which was denied by the plaintiff), tends to show that the child may have been begotten by Carlos Thurston on that occasion, and, also, that what was said at Mr. Flanders’s between Carlos Thurston and the plaintiff a few weeks after she left the defendant’s house, tends to show the same. Whatever tendency this evidence had for this purpose, the defendant could have the benefit of. If it were proved that the plaintiff had intercourse with Carlos Thurston on the morning of that 2d of June, it would not necessarily show that the paternity of the child was not imputable to the defendant ; but it would be competent evidence, as it would tend to render it uncertain which was the father of the child. It is claimed on the part of the defense, that, in order to confirm this circumstantial evidence of intercourse with Carlos Thurston on the 2d of June, the evidence of Wilbur N. Thurston as to the plaintiff and Carlos Thurston going into a room together, is admissible, although previous to the time when the child must have been begotten. Thayer v. Davis, 38 Vt., 163, is relied on in support of this proposition.
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The opinion of the court was delivered by
Peck, J.
The evidence introduced on the part of the defense,, tending to show sexual intercourse by the plaintiff with others than the defendant, and acts of indecent familiarity with them, tending, as was claimed, to show such intercourse, outside of the time within which, according to the course of nature, the child in. question could have been begotten, was improperly admitted. Evidence of this character is limited to such acts within the time the child could have been begotten. This evidence was not rendered admissible by the inquiries as to such acts having been first. made of the plaintiff on the stand, and her denial of them. The defendant had no right to make such inquiries, and, when made, the plaintiff had her election to answer or not, as she pleased. Her answering without objection does not give the defendant the right to introduce evidence to contradict her answers; not even for the purpose of impeaching or discrediting her testimony. The-[91]*91defendant, having made the inquiries of her as to such collateral matter, must take such answers as she gives ; at least, he can not introduce evidence to contradict her in this respect. We understand this to be not only in accordance with the principles of evidence, but in conformity to the long and well settled practice in prosecutions for bastardy. In Commonwealth v. Moore, 3 Pick., 194, which was a prosecution for bastardy, such evidence was offered on the part of the defense, and claimed to be admissible, not only as tending to impeach the credit of the mother as a witness, but also as tending to show that the defendant was not the father of the child, and it was held to be clearly inadmissible.
The error is not cured by the direction of the court to the jury in the charge, not to consider it, as it had no tendency to show that the defendant was' not the father of the child. It had already had its influence on the minds of the jury, and it would be extremely improbable, if not impossible, that'the jury could know what their conviction would have been on the material fact, had this evidence not been in the case. This point was decided in Conn. & Pass. R. R. R. Co. v. Baxter, 32 Vt., 805, where the reasons are well assigned. It was proper for the court to give such instructions after they had discovered the error, because it might have some influence in removing the impression created by that evidence, and had the verdict been the other way, the error would have become immaterial. But as the verdict was for the defendant, the error is not cured.
The objection to the defendant’s offer to show by Dr. Whitcomb that the plaintiff applied to him for medicine to procure an abortion, and to show by Mrs. Brown that the plaintiff attempted to procure an abortion and what the plaintiff said ón that subject, ought to have been sustained, and the evidence excluded. And the court erred in charging the jury that it was evidence tending to contradict and discredit the plaintiff and her mother. This was decided in Sweet v. Sherman, 21 Vt., 23. In that case, the defendant 'offered to prove such fact both by inquiring of the plaintiff on cross-examination, and by a physician introduced by the defendant, and it was held that it was properly excluded. In the opinion in that case it is said, that it had no tendency to prove [92]*92whether the defendant was the father of the child, and that it could not be claimed as proper matter by way of impeaching the plaintiff as a witness. The fact of an attempt to procure an abortion being wholly immaterial to the issue on trial, if the defendant chooses to make such inquiry on cross-examination, and the witness chooses to answer, the defendant must be content with such answer as he gets.
The indecent question put to the plaintiff by Mr. Flanders and her reply, should have been excluded by the court. The plaintiff would naturally repel such a question in the shortest possible way, and her reply furnishes no just ground of inference .against her.
But it is insisted by the counsel of the defendant, that the evidence of Wilbur N. Thurston as to what transpired at the defendant’s house in February, 1865, was properly admitted. This transaction was not within the time the child could have been begotten, as the child was born March 4, 1866. If actual intercourse with others than the defendant, outside of the time the -child could have been begotten, is inadmissible, clearly indecent familiarity with the witness, outside of that time, must be incompetent. It is claimed that the evidence of this witness tends to prove sexual intercourse between the plaintiff and Carlos Thurston 'on that occasion. The deportment between Carlos Thurston and the plaintiff to which this witness testified, claimed to be suspicious, is that, in the evening, those two left the room where the rest of the company were, and went into the back room, and were gone about ten minutes. Divesting the case of the inadmissible evidence with which it was incumbered, this circumstance can hardly be said to be any evidence of sexual intercourse on that occasion. But if any evidence at all, the presumption must be extremely slight. But in any view of it, not being within the time the child could have been begotten, it was of itself alone incompetent evidence. But it is claimed that this evidence of Carlos Thurston and the plaintiff going into the other room together, is rendered admissible by other evidence in the case. It appears that the plaintiff had testified that she took her bundle of clothes between two and three o’clock in the morning June 2, [93]*931865, and left tbe defendant’s bouse where she had resided since sis years old, and started for her mother’s some sis or eight miles from there, and on her way passed by Thurston’s where Carlos Thurston lived. There was evidence that she then knew that Mrs. Thurston was absent from home. It is insisted that the testimony of Mrs. Brown, to the effect that the plaintiff told her that, after leaving the defendant’s house on that occasion, she went to-Mrs. Thurston’s barn and staid till morning, and stopped at Mrs. Thurston’s house and got breakfast for Carlos Thurston (which was denied by the plaintiff), tends to show that the child may have been begotten by Carlos Thurston on that occasion, and, also, that what was said at Mr. Flanders’s between Carlos Thurston and the plaintiff a few weeks after she left the defendant’s house, tends to show the same. Whatever tendency this evidence had for this purpose, the defendant could have the benefit of. If it were proved that the plaintiff had intercourse with Carlos Thurston on the morning of that 2d of June, it would not necessarily show that the paternity of the child was not imputable to the defendant ; but it would be competent evidence, as it would tend to render it uncertain which was the father of the child. It is claimed on the part of the defense, that, in order to confirm this circumstantial evidence of intercourse with Carlos Thurston on the 2d of June, the evidence of Wilbur N. Thurston as to the plaintiff and Carlos Thurston going into a room together, is admissible, although previous to the time when the child must have been begotten. Thayer v. Davis, 38 Vt., 163, is relied on in support of this proposition. In that case, the plaintiff, according to her testimony, was but fourteen years old when the child was begotten; she had not seen the defendant for a year or more before the child was begotten ; and the further fact appeared by the exceptions in that case (though not appearing in the report), that the plaintiff testified that the child was begotten while she was riding home with the defendant in the evening from a concert and dance. The.short time they were alone together, the slight acquaintance she apparently had had with the defendant, as her testimony then stood, might well have been urged against the probability of the intercourse having taken place under the cir[94]*94cumstances and on the occasion testified to by her. She was then allowed, against objection, to state that, when she was eleven years old, she and the defendant lived together in the same family, and that he then had connection with her. But the supreme court, in affirming the judgment, do not put it on the peculiar circumstances of that case, but upon the broader-ground that'the previous familiarity or intimacy existing between the parties, is a circumstance admissible as bearing on the probability of the alleged sexual intercourse which is the subject of the prosecution. This decision has no bearing in favor of the admissibility of Wilbur N. Thurston’s testimony as to the plaintiff’s conduct with him, for it is not claimed that he ever had connection with her. Nor was what ho testified transpired on that occasion between the plaintiff and Carlos Thurston, admissible for any such purpose as the defendant’s counsel seek to use it for; that is, to infer from it that they had sexual intercourse there, and then on that presumption base another presumption, that they had intercourse on the 2d of June. It is presumption based on presumption, and that, too, resting on an original basis too slight to justify any such conclusion. The fact which is to form the basis of a presumption, ought to be clearly proved. In Thayer v. Davis, the sexual intercourse was testified to directly. We do not say but that so far as anything transpired between the plaintiff and Carlos Thurston on that occasion, it might have been proper as evidence to show that they were well acquainted with each other, if that was in dispute. But the plaintiff herself had testified that she was well acquainted with him. If the evidence of Wilbur.N. Thurs-ton had been confined simply to what took place on that occasion between the plaintiff and Carlos Thurston, and no unwarrantable use had been made of it, it might not have been error; but as the case is, the ruling of the court was erroneous.
It is claimed by the plaintiff’s counsel, that declarations made by the plaintiff after the overseer filed his certificate and took control of the prosecution, were not evidence in chief, but only evidence tending to discredit the testimony of the plaintiff, and that the court erred in charging that such declarations were evidence in chief. It is claimed that, after the town assumed control [95]*95of tbe suit, the plaintiff in this respect was a mere witness, or but a nominal party having no interest. It is only where the town is Charged or likely to be charged with the support of the child, that the statute authorizes the town to assume the control of the suit. It is true that, in such case, the town indemnifies the mother from all future costs; but the statute provides that the town shall apply all moneys recovered, exclusive of costs, to the support of the child. The town is bound to appropriate the fund to the same purpose that the duty of the mother would require her to apply it to. It is true the mother can not settle the suit without the consent of the overseer of the' town, after he assumes control of it; but it is also provided that the overseer can not compromise the suit, without the consent and approbation of such woman. The ultimate use and appropriation of the fund remaining the same, the woman can not be regarded as becoming a mere nominal party without interest, by the town’s assuming the control of the prosecution. We think, therefore, there was no error in treating the declarations of the plaintiff in relation to material facts in the case, as evidence in chief. Where there is any reason to suppose the woman is acting under the influence or in the interest of the defendant, it is a matter to be considered by the jury in judging of the weight that should be given to such declarations as evidence. Such declarations are never to be regarded as conclusive.
The plaintiff also excepted to the introduction of certain evidence to impeach the general character of the plaintiff for truth. It appears by the case .that the plaintiff has not lived in the vicinity of the defendant’s since she left his house • in June, 1865; that the impeaching witnesses introduced by the defendant, mostly reside in the vicinity of the defendant’s ; and many of them stated that they had heard no reports against her character for truth previous to her leaving the defendant’s, but had heard such reports since; and some of them stated they had heard no such reports until a short time previous to the trial. And it further appears that the reports previous to her leaving the defendant’s, were mostly in relation to two or three matters of difficulty and controversy which she had with a schoolmistress and another [96]*96girl in the school district. The exception is to the admission of that part of the impeaching testimony relating to the plaintiff’s reputation since this controArersy ar'ose. The reasons urged by-counsel against the admissibility of this evidence, based on the facts appearing in the case, are certainly forcible, and go far to-detract from the weight and damaging effect of such testimony; especially under the mode of impeaching a witness in this state, by proof of general character as to truth, and that character-made up solely by what other people say out of court. But we can not say that such evidence is inadmissible. It is competent, but should be guarded by proper instructions to the jury as to the force and weight to be given to it. It is to be presumed the court accompanied it with proper instructions. As to this exception we find no error.
Judgment reversed, and new.trial granted.