Page:North Dakota Reports (vol. 48).pdf/756

 on June 22. It is undisputed that she gave birth to a child, and that she is unmarried. The evidence shows that she and the defendant had been keeping company from June, 1919, till February, 1920. There is some intimation that at that time a disagreement arose; but the complaining witness says that the defendant later "made everything good." She also testified positively that on May 11, 1920, he came and took her for a ride, and that upon that occasion they had sexual intercourse, and that they again had such intercourse on June 22, 1920. She testified positively that she at no time had sexual intercourse with any one other than the defendant; and there is not the slightest proof in the record tending to show that she did. It is elementary that the credibility of witnesses and weight of testimony are questions for the jury. This rule is, of course, applicable in bastardy proceedings. See State V. Peoples, 9 N. D. 146, 148, 82 N. W. 749; State v. Brandner, 21 N. D. 310, 316, 130 N. W. 941. The complaining witness was given a thorough cross-examination. The discrepancies in her testimony were clearly pointed out. Judging by the record before us, the complaining wit- ness was an ignorant girl. The jury saw her, and heard her story. That story is not so incredible as to be unworthy of belief. State v. Brandner, 21 N. D. 310, 130 N. W. 941, presented a situation very similar to that presented here. There, as here, it was contended that the evidence was insufficient to sustain a verdict against the defendant. And it was pointed out that the complaining witness

-"first accused the defendant of having but one act of intercourse with her and that upon February 10, 1908; and that after the child was born, September 19, 1908, she accused the defendant of but two acts of intercourse the first being on December 29, 1907, and the second February 10, 1908." 21 N. D. 316, 130 N. W. 943.

The court held that this was a matter for the consideration of the jury as affecting the credibility of the witness, and refused to disturb the verdict. It is next contended that the court erred in admitting evidence relating to the act of sexual intercourse which, according to plaintiff's testimony, occurred on May 11, 1920. It is also contended that the court erred in instructing the jury as follows:

"I charge you, gentlemen, that the particular date charged in the complaint need not be proved if in fact you find by a preponderance of the evidence that a bastard child was begotten upon the body of and