[1] I decline to instruct the jury to render a verdict of not guilty, for the reasons stated in Richardson vs. State, Boyce, 534, 109 Atl. 124.
*16The accused offered evidence to show that he had had sexual intercourse with H. upon one occasion only, when he and several companions had sexual intercourse with her in a house in Wilmington where he and they had gathered; that for a short time after the birth of the child he had contributed towards its support, because he was at first threatened with arrest by the mother of H., and later was summoned before a justice of the peace where he appeared without counsel, and was told that he must contribute $1.50 per week, for the support of the child; that in 1911, when he was again summoned before another justice of the •peace, he appeared with counsel, and was relieved of further payments.
Counsel for accused again requested the court to instruct the jury to return a verdict of not guilty for the reasons before stated, otherwise to instruct them that before a verdict of guilty ' could be rendered, the evidence must prove beyond a reasonable * doubt that the accused is the father of the child.
charging jury:
[2, 3] Under this information you are trying a case anew that was appealed from the municipal court, but we try it here as though it had not been tried anywhere else.
You are not trying what is ordinarily known as an action of bastardy, to establish the paternity of a child under the old basterdy act, but an information filed under the desertion and support laws, which provide that parents of legitimate children shall support those children, if they are in necessitous circumstances, until they are sixteen years of age, and also that the parents of illegitimate children shall have the same responsibility imposed upon them. The language of the statute is as follows:
“Any parent who shall, without lawful excuse, desert or willfully neglect, or refuse to provide for the support and maintenance of his or her legitimate child or children, under the age of sixteen years, in destitute or necessitous circumstances, shall be guilty of a misdemeanor.”
And further:
"It is made the duty of the parent of any illegitimate child or children, under the age of sixteen years, to provide for the support and maintenance of such illegitimate child or children.”
*17The information charges that the defendant is the father of the child; that the prosecuting witness is his mother; that the child was born on February 3, 1910, out of wedlock and is now in necessitous circumstances.
In this case, as in every criminal case, the defendant is presumed to be innocent, and it is incumbent upon the state to prove to your satisfaction, beyond a reasonable doubt, the necessary elements of the offense charged, that is, the state must thus prove that this child is under sixteen years of age, that he is in necessitous circumstances, and that the defendant is his father.
It is not disputed that the prosecuting witness is the mother of the child; that the child is under sixteen years of age and that he is in necessitous circumstances. The defendant however, denies that he is the father of the child.
In determining that question, you are to take the evidence as you have heard it from the stand, weigh it and consider it. Where it is conflicting you should reconcile it if you can. If you cannot reconcile it, you should believe that which you think most worthy of belief, and reject that which you think less worthy of belief, and if, after such a consideration of the evidence, you are satisfied beyond a reasonable doubt that the accused is the father of this child, your verdict should be guilty. If you are not so satisfied your verdict should be not guilty.
You have nothing to do with what the effect of your verdict may be. That is entirely for the court. You are to determine whether or not the accused is the father of this child, from the evidence as you have heard it, and having done that you should return a verdict accordingly.
Verdict guilty.