delivered the opinion of the Court:
The proof of the charge of bastardy made in this case rests upon the unsupported testimony of the complainant.
She testified that she gave birth to the child on the 15th day of August, 1871; that it was the result of a single act of illicit intercourse between herself and the defendant, in the middle or latter part of November, 1870, and that that was the only instance of such intercourses she ever had with the defendant or any other person.
On the part of the defense, the defendant, by his own testimony, denied the charge in all its parts.
Another witness testified that he himself had sexual intercourse with the complainant as often as once, and sometimes twice, a week, during the months of October and November, 1870, and that during her pregnancy she informed him of her condition, and inquired of him what he was going to do about it. Two other witnesses testify to having surprised the complainant and still another person in the direct act. of sexual intercourse, in October or November, 1870.
The complainant had informed her own father that the father of the child lived at Shannon, in another county, that of Carroll; in consequence of which, her father went there to see the person on the subject. The defendant never lived at that place, as the complainant herself testified. This was a circumstance affecting the credibility of her testimony.
The witnesses on the part of the defendant were in no way attempted to be impeached, save that, as to two of them, it was relied upon as detracting from their credibility, that, previous to the making of the complaint in this case, they had made voluntary affidavits, before a justice of the peace, of the facts which they testified to on the trial.
In view of the whole testimony, a majority of the court regard it as too unsatisfactory to fix the paternity of the child upon the defendant, and the court below should have set aside the verdict as being clearly against the weight of evidence, and have granted a new trial.
The judgment is reversed and the cause remanded.
Judgment reversed.