If, after conviction, the defendant be required to execute a new bond, either to keep the peace, or to appear at a subsequent term, and he depart without complying with the order, it is a breach of the recognizance. Schenck, 138—

563.

EFFECT OF CONVICTION.-The conviction of a defendant does not, by its own force, put him in custody of the court, but to exonerate the surety, the defendant must submit to such punishment as shall be adjudged. Schenck, 138— 560.

A conviction and sentence are not final until the end of the term, since the court may strike out its judgment and enter a different one. Schenck, 138565.

Sec. 61 (3228). Sheriff may take bail of prisoner in custody.

If any person for want of bail shall be lawfully committed to jail at any time before final judgment, the sheriff, or other officer having him in custody, may take sufficient justified bail and discharge him; and the bail bond shall be regarded, in every respect, as other bail bonds, and shall be returned and sued on in like manner; and the officer taking it shall make special return thereof, with the bond, at the first court which is held after it is taken.

Code, s. 1232; R. C., c. 11, s. 8.

Sec. 62 (3229). May plead any defense principal might.

Every matter which would entitle the principal to be discharged from arrest, may be pleaded by the bail in exoneration of his liability.

Code, s. 1233; R. C., c. 11, s. 9.

BANK EXAMINER.

Sec. 63 (3324). Examiner making false report.

If any bank examiner shall knowingly and willingly make any false or fraudulent report of the condition of any bank which shall have been examined by him, with the intent to aid or abet the officers, owners or agents of such bank, in continuing to operate an insolvent bank; or if any such examiner shall receive or accept any bribe or gratuity, given for the purpose of inducing him not to file any report of an examination of any bank made by him, or shall neglect to make an examination of any bank by reason of having received or accepted any bribe or gratuity, he shall be guilty of a felony, and on conviction thereof shall be imprisoned in the state's prison for not less than four months nor more than ten years. 1903, c. 275, s. 24.

BANK OFFICERS.

Sec. 64 (3325). Officers and agents, malfeasance of.

If any president, director, cashier teller clerk or agent of any bank or other corporation shall embezzle abstract or wilfully misapply any of the moneys, funds or credits of the bank, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage judgment or decree, or make any false entry in any book, report or statement of the bank with the intent in either case to injure or defraud or to deceive any officer of the bank or if any person shall aid and abet in the doing of any of these things, he shall be guilty of a felony, and upon conviction shall be imprisoned. in the state's prison for not less than four months nor more than fifteen years, and likewise fined, at the discretion of the court. 1903. c. 275, s. 15.

Sec. 65 (3326). Statements, making false.

If any person shall wilfully and knowingly subscribe to, or make, or cause to be made, any false statement or false entry in the books of any bank, corporation, partnership, firm or individual transacting a banking business, or shall knowingly subscribe to or exhibit false papers, with the intent to deceive any person authorized to examine into the affairs of said bank, corporation, partnership, firm or individual, or shall wilfully and knowingly make, state or publish any false statement of the amount of the assets or liabilities of any such corporation, partnership, firm or individual, he shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the state's prison not less than four months nor more than ten years.

1903, c. 275, s. 27.

BASTARDY.

Sec. 66 (252). Justices have jurisdiction; warrant issued only on complaint of woman or county commissioner.

Justices of the peace of the several counties shall have exclusive original jurisdiction to issue, try and determine all proceedings in cases of bastardy in their respective counties. A warrant in bastardy shall be issued only upon the voluntary affidavit and complaint of the mother of the bastard; or, upon the affidavit of one

of the county commissioners, setting forth the fact that the bastard is likely to become a county charge.

Code, s. 31.

Sec. 67 (253). Procedure on complaint by county commissioner.

When complaint is made on affidavit by one of the county commissioners, as set forth in the preceding section, to any justice of the peace of the county in which the woman resides, that any single woman within his county is big with child, or delivered of a child, he may cause her to be brought before him, or any other justice of the county, to be examined upon oath respecting the father; and if she shall refuse to declare the father, she shall pay a fine of five dollars and give a bond payable to the state with sufficient surety to keep such child from being chargeable to the county, otherwise she shall be committed to prison until she shall declare the same, or pay the fine aforesaid and give such bond.

Code. s. 32.

EVIDENCE. Where defendant testifies that he has never had sexual intercourse with the mother, evidence that she had criminal intercourse with another man about the time when in the course of nature the child must have been begotten, and that such intercourse was habitual, is admissible. Britt, 78-439.

Where defendant denies the paternity and introduces evidence that the prosecutrix had sexual intercourse with another man about the time the child must have been begotten, evidence that the child resembles such man is admissible. Britt, 78-439.

Where the prosecutrix testifies that the defendant is the father of the child, which the defendant denies. and on cross-examination she testifies that she never had intercourse with any other man, the fact thus brought out on cross-examination is collateral, but evidence offered by defendant that she had intercourse with other men, at or about the time the child was begotten, is admissible to impeach her. Perkins, 117-698.

The issue in bastardy is the paternity of the child, and whatever tends to prove or disprove the affirmative of this issue is competent; and, therefore, evidence that another than the defendant had intercourse with the prosecutrix about the time the child was begotten is competent. Warren, 124–807.

Where the mother is a married woman she is not a competent witness to prove the non-access of her husband. Pettaway, 10 (3 Hawks), 625.

A child born in wedlock is presumed to be legitimate, and when it is shown that the husband might have begotten it, the presumption is conclusive, but this presumption may be rebutted by proof of facts and circumstances showing that the husband could not have been the father. and the wife is a competent witness to prove these facts. McDowell, 101-734.

Evidence of the bad character of the woman for truth may be given by defendant, though she has offered no evidence except her examination or affidavit. Pearson, J., dissenting. Floyd, 35 (13 Ired.), 382.

The child may be exhibited to the jury for them to see whether its features resemble the alleged father. Woodruff, 67—89.

While evidence that the prosecutrix had sexual intercourse with persons other than the defendant about the time the child was begotten is competent,

yet where the prosecutrix, upon her examination, denies such intercourse, the matter being collateral, her answer is conclusive. Parish, 83-613.

Where the prosecutrix is asked if she had not had sexual intercourse with another person than defendant and denies it, her answer is conclusive and can not be contradicted. Patterson, 75-157.

Defendant has a right to show that the child does not resemble him. Bowles, 52 (7 Jones), 579.

Evidence that the putative father was impotent at the time the child is alleged to have been begotten is competent. Hargett, 69-411.

Where a witness, in reply to a question, denies being the keeper of a bawdy house the answer is conclusive and can not be contradicted by hearsay evidence as to the bad character of the witness. Cagle, 114-835.

BASTARDY CHILD OF MARRIED WOMAN PRESUMED TO BE LEGITIMATE.-A child born in wedlock is presumed to be legitimate, and this presumption can only be removed by proof of impossibility of access or impotency of the husband. Rose, 75-239.

If a child be born in wedlock it is legitimate by presumption of law, though the birth takes place within a month or a day after marriage, and where the mother was visibly pregnant at the time of the marriage the child is presumed to be the offspring of the husband. Herman, 35 (13 Ired.), 502.

If a married woman have a child born by an adulterous intercourse in violation of the rights of matrimony, the nuptial state of the woman does not prevent the law from pronouncing the child a bastard; it only raises a presumption that the child is legitimate. Pettaway, 10 (3 Hawks), 623. The fact that the mother of the alleged bastard was married, only raises a presumption that the child is legitimate. Peebles, 108-768.

WHEN THE PRESUMPTION CONCLUSIVE.-A child born in wedlock is presumed to be legitimate, and unless it is born under such circumstances as to show that the husband could not have begotten it, the presumption is conclusive. McDowell, 101-734.

ISSUE OF FACT.-The legitimacy of a child born of a married woman is an issue of fact for the jury. Liles, 134-735.

Evidence that the child was begotten before the marriage of the mother is competent. Liles, 134–743.

It is not necessary for proceedings in bastardy to show affirmatively that the mother of the child is a single woman. Allison, 61–346.

There is no presumption of law that a woman is married rather than single. Allison, 61-346.

MEDICAL ATTENTION AND BURIAL EXPENSES.-Under Revisal, section 259, the intention is to secure to the mother either her probable expenses or to reimburse her actual outlay, and the death of the child when born does not affect the right of the mother to "support"; among other things, she is entitled to pay for medical attention and medicine for herself, and the burial expenses of the child, consequent upon the defendant's unlawful act. Revisal, sections 253 and 254. Addington, 143-684.

NOT WORKED ON PUBLIC ROADS.-Under Revisal, section 262, the court has no jurisdiction to enforce its order of "support" by committing the defendant "to the house of correction," to wit: the common jail, with authority of the commissioners to have him work on the public roads, allowing the sum of ten dollars a month for his labor, to be paid into the court for the use of the feme defendant and paid to her in satisfaction of the said allowance. When there is no house of correction in the county, the court can only commit him to jail until the performance of the order of support. Addington, 143-684. The intent of the legislature, Revisal, section 259, in the use of the word "fine" was in the use of a punishment for a criminal offense, and such can

not be imposed by the court in proceedings in bastardy when the jury finds the issue of paternity against the defendant. Addington, 143–683.

CIVIL ACTION. A proceeding in bastardy is of a civil nature, not a criminal prosecution, and intended merely for the enforcement of a police regulation. Addington, 143-683.

MOTHER PRESUMED SINGLE.-There is a presumption in bastardy proceedings that the woman is single. Liles, 134–742.

A CIVIL ACTION.-A proceeding in bastardy is a civil action. State v. Ostwalt, 118-1208, and State v. Ballard, 122-1024, overruled on this point. Liles, 134-735.

STATE ENTITLED TO FOUR CHALLENGES.-The state is entitled to four peremptory challenges in bastardy, it being a civil action. Pate, 44-244.

RECOGNIZANCE.-The recognizance for appearance entered into by a defendant in a bastardy proceeding is in the nature of a bail bond, and the defendant has a right to surrender himself in discharge of his bail, after being called out, before final judgment against him on the sci fa. Thompson, 48— 365.

MAY TAKE OATH OF INSOLVENT.-The defendant may be discharged from imprisonment by complying with the insolvent debtor's act. White, 125

674.

MOTHER OF BASTARD PRESUMED TO BE SINGLE.-It is not necessary that a bastardy proceeding should show affirmatively that the mother of the bastard was a single woman, as that fact will be presumed. Peebles, 108-768.

AFFIDAVIT PRESUMED TO BE VOLUNTARY.-Where it appears that the affidavit upon which a warrant for bastardy issued was sworn to before a justice of the peace by the mother, it will be presumed to have been voluntarily made. Peebles, 108-768.

WRITTEN EXAMINATION OF PROSECUTRIX IN A BASTARDY PROCEEDING.—It is not error for the court to charge the jury in a bastardy proceeding that "the written examination of the woman was presumptive evidence that the defendant was the father of the child, and that it devolved on him by a preponderance of evidence to show that he was not, and that, if taking all the evidence into consideration, both sides were evenly balanced, the state was entitled to a verdict." Rogers, 79-609.

EFFECT OF THE WRITTEN EXAMINATION OF THE WOMAN.-Effect is given to the examination without reference to the misconduct or reputation of the woman making it, since the very cause discloses the want of virtue. Giles, 103-391.

It is not error to charge that illicit intercourse with others, even when approaching a habit, does not, unconnected with other evidence tending to show the falsehood of the charge, rebut the presumption given by the statute to the examination of the woman. Giles, 103-391.

The legal presumption is not rebutted by proof that just nine months previous to the birth of the child, the prosecutrix had illicit intercourse with another man, and that on one occasion, about that time, they were caught in the act. Bennett, 75-305.

NO APPEAL BY STATE OR PROSECUTRIX.-Neither the state nor the prosecutrix can appeal from a verdict of not guilty. Ballard, 122-1024.

An acquittal by a justice of the peace is final, since the defendant can not be twice put in jeopardy. Ostwalt, 118-1208.

The clause allowing an appeal by the "affiant or the woman" is unconstitutional. Neither the state nor the woman can appeal. Ostwalt, 118— 1208.

LIMITATION OF ACTION.-A proceeding in bastardy is barred only after the lapse of three years, and is not controlled by section 1177 of The Code. Hedgepeth, 122-1039.