Seaton v. Swem. up in Mr. Parson's hands. After the election, Mr. Caldwell drew the money with my consent. Then Seaton contested the election, and the three persons decided in his favor, and after that, when Mr. Seaton was declared elected, Caldwell paid me back the money." "Question. What was said between you at that time, in regard to that money, in case it was subsequently reversed? "Answer. I told him if it went the other way I was to have the money, and if it went the other way again I was to pay him the money. I told him I would pay him the money." It appears clearly that, whilst the wager was paid to Haynes upon the determination in favor of Seaton, it was paid with the understanding that the whole amount should be paid back if the decision in favor of Seaton should be reversed. The bet thus became a wager as to the ultimate result of the very trial in which Caldwell was called as a juror. If these facts had been disclosed before he had been accepted as a juror, they certainly would have furnished ground for a challenge for cause. It is entirely opposed to all our ideas of the impartiality which should characterize judicial proceedings, that controversies between parties should be decided by persons who have made wagers as to the result. If it is competent for one juror to serve who has made such a wager, then the whole jury may be composed of persons who have wagers pending upon the result. That such a thing should be tolerated is offensive to every notion of justice. There can be no assurance that a just and impartial decision can come from such a source. Decisions of courts can command respect and confidence only when it appears that they are announced by parties absolutely without prejudice or bias. It is true the amount of the bet is very small. But there is no legal principle upon which it can be said that a juror having a wager of one thousand dollars as to the result of a litigation is incompetent, and one having a wager of twenty-five cents is competent. Courts cannot determine as to degree of bias, Seaton v. Swem. nor will it do to hold a juror having any bias is competent. The wager seems to have been regarded by the parties to it as a matter not wholly without interest. When the result was declared in favor of Swem, Caldwell drew the whole sum, and when this result was reversed, and Seaton was declared elected, the amount was paid, to Haynes, not, however, without a promise to pay it back if Swem should ultimately obtain a decision in his favor. It will not do to say that Caldwell was not rendered incompetent, because the law would furnish him no remedy to recover the amount of the bet. If this be held, then all the jurors in a cause may have bets, however large, depending upon the result of the controversy, and still be competent. Who can say to what extent the desire of a party, who has made a bet, to have his judgment sustained, would influence him when called upon to determine from evidence, whether the fact accorded with or was opposed to his previously expressed opinion as to the result? Can it be said that a party who has made a bet, however small, as to a future event, has expressed no opinion as to the result? Can it be said that a person in such a situation is in a condition, impartially and without any bias, to weigh the evidence upon which depends the determination of the existence or non-existence of the event. Ordinarily one expects what he desires, and bets upon the accomplishment of what he expects. Usually the mere fact of making a bet indicates a bias. One who is entirely indifferent respecting an event rarely makes a bet respecting it. In Essex v. McPherson, 54 Illinois, 349, a verdict was set aside upon the ground that one of the jurors had previously made a bet of a neck tie that the result of the cause would be in favor of the prevailing party. The court said: "For a juror to set in the trial of a cause upon the result of which he has a wager depending, is a gross impropriety and offensive to the sense of justice. See Stafford v. The City of Oskaloosa, 57 Iowa, 748. A new trial should bave been granted. REVERSED. In a 1. Bastardy: CHILD BORN IN WEDLOCK: BURDEN OF PROOF. prosecution for bastardy, the evidence showing that the child was born about three months after marriage, and that at the time it was begotten the husband was visiting the mother as a suitor, the jury should have been instructed that the presumption of legitimacy was so strong it could only be overcome by distinct, satisfactory, and conclusive evidence to the contrary. 2. : PREPONDERANCE OF EVIDENCE. The rule, that the defendant in a prosecution for bastardy, may be convicted upon the preponderance of the evidence, applies to the question of guilt or innocence arising upon the whole case. Appeal from Cedar District Court. WEDNESDAY, APRIL 5. THIS is a proceeding under the statute to charge the defendant with the maintenance of an illegitimate child, of which, it is alleged, he is the father. There was an answer in denial, and an averment that the complainant had made provision for the support and maintenance of the child, by legal articles of adoption. There was a trial by jury, and a verdict of guilty, and judgment thereon, from which defendant appeals. Piatt & Carr, for appellant. Smith McPherson, Attorney-general, for the State. 1. BASTARDY: ROTHROCK, J.-I. It appears that Annie Swart, the mother of the child, was married to Henry Swart, on the 19th of February, 1880; the child in question was born child born in on the 13th of May, following. The defendant den of proof. is the husband of the sister of the complainant, and at the time the child was begotten complainant was a member of the defendant's family. The defendant requested wedlock: bur The State v. Romaine. the court to instruct the jury to the effect that the child was not illegitimate, for the reason that it was born in wedlock, and that a child is not a bastard unless begotten and born out of wedlock. The instruction was refused, and the court instructed the jury that as the child was born in wedlock, the law presumed it to be legitimate, and the burden was on the State to show that it was begotten by the defendant, and not by the husband of the complainant. There was also the further instruction, that if the condition of the complainant was such at the time of her marriage as to lead her husband to suppose she was in a state of pregnancy, and that notwithstanding her appearance he married her, and has since lived. and cohabited with her, then such fact is conclusive evidence that the husband is the father of the child. In Rhym v. Hoffman, 6 Jones Eq. N. C., 335, where a mother was pregnant when married, and gave birth to a child six months afterward, it was held the child was legitimate. The court say: "That if a woman big with child by A, marry B, and then the child be born, it is the legitimate child of B." See 1 Rolls Abr., 358; 2 Bac. Abr., 84. In the same case it was held, that a child begotten and born after marriage, is legitimate, unless it be proven by irresistible evidence that the husband was impotent, or did not have any sexual intercourse with the wife. In State v. Heman, 13 Iredell, 502, it was held that a child born during wedlock, though born within a month or a day after marriage, is legitimate by presumption, and when a child is born during wedlock of which the mother was visibly pregnant at the marriage, the conclusive presumption is that it was the offspring of the husband. In Hargrave v. Hargrave, 9 Beav., 552, in determining the question as to the illegitimacy of a child begotten and born during wedlock, it is held that the presumption in favor of legitimacy is to have its weight and influence, and the evidence against it ought to be strong, distinct, satisfactory, and conclusive. The State v. Romaine. In Shuler v. Bull, Sup. Ct. S. Carolina, Vol. 12, p. 156, of the Reporter, it is held that the question of the paternity of a child born in wedlock is one of fact, to be determined upon competent evidence, and such evidence is not limited to proof of impossibility of access. In 2 Starkie on Ev., 196, in discussing the question as to the legitimacy of a child begotten before marriage, the author says: "It seems, however, that in such cases, it is competent to prove that it was impossible that the husband could have been the father, for a stronger presumption cannot arise in such a case, than is made in favor of a child conceived after wedlock." It appears to us that the true rule adduced from the authorities as well as from principle, is that a child born in wedlock, whether begotten before or after marriage is presumed to be the child of the husband, but that such presumption may be rebutted by strong, satisfactory, and conclusive evidence that the husband did not have access to the mother of the child when it was begotten. And if a woman be pregnant at the time of the marriage, and if the pregnancy be known to the husband, he should be conclusively presumed to be the father. We think the court in this case did not attach sufficient importance to the presumption of legitimacy. It is true the jury were instructed that the law presumes that a child born in wedlock is legitimate, and that the burden of proof is on the State to show that the child was begotten by some person other than the husband of the mother. In view of the evidence in the case, which shows beyond question that about the time the child was begotten the husband was visiting the complainant as a suitor, once or twice a week, and the further fact that the child was born in about three months after marriage, the jury should have been instructed that the presumption of legitimacy was so strong that it could only be overcome by "distinct, strong, satisfactory, and conclusive" evidence to the contrary. Hargrave v. Hargrave, supra. It is true that in this proceeding we have held that the |