Kelly v. State , 133 Ala. 195 ( 1901 )

McCLELLAN, C. J.

There is in Paulk v. State, 52 Ala. 427, ¡this diclrnn: “On an issue formed in a bastardy proceeding, it is doubtless competent 'for tlie defendant to prove that the child bears no likeness or resemblance to him, or that it resembles some other person, who had opportunities of illicit intercourse with ¡the mother.” It would necessarily follow that the prosecution upon such issue would be entitled to show that the child resembled the defendant; and, logically, that in such case it would be competent to make profert of the child before the jury to show its resemblance, or lack of resemblance ¡to the putative father. In Linton v. State, 88 Ala. 216, the charge was miscegenation of the defendant Linton, a white woman, with John Blue, a negro; and of the propriety of allowing the prosecution to prove Blue’s race by producing his person before the jury, this court said: “There'was no error in allowing the State to make profert of the person of John Blue to the jury, in order that they might determine by inspection whether he was a negro, as charged in the indictment. There had been a severance in the trials of appellant and Blue; and evidence of this character is clearly competent to show sex (White v. State, 74 Ala. 81) ; age (State v. Arnold, 13 Ired. 184) ; personal resemblance (State v. Woodruff, 67 N. C. 439) ; color and race (Garvin v. State, 52 Miss. 207; Gentry v. McMinnis, 3 Dana, (Ky.), 385), and many like facts in regard to the personality of the defendant himself, or of any other individual involved in the issue. — Whart. Cr. Ev., §§ 311 et seq.” The question in Linton’s case, being one of race and not of resemblances, is not the question here; and that case is not authority here, but we have quoted from the opinion in that case to show our citation there with approval of the cases of State v. Woodruff, 67 N. C. 89, and State v. Britt, 78 N. C. 439, both of which were bastardy cases, 'and in one of which evidence of the child’s resemblance to the defendant given by the midwife was received, and in the other it was held competent to make profert of the child to the jury to shoAV its resemblance to the defendant. It is thus made to appear that in Linton’s case, as well as in Paulk’s, there is a dictum of this court to the effect that in bastardy proceedings profert may be made of the child. We shall hold in line with these dicta, and indorse the ruling of the circuit court in this connection. Much may he said as to the uncertainty of such evidence, and there are authorities against its competency as well as for it; but evidence, should not be rejected merely on the ground that its bearing is not of a given degree of certainty, and while evidence of this sort may in point of fact often throw little light on the issue, or none, it may, we think, be submitted for the jury’s consideration as ' affording in most cases the basis for1 reasonable deductions on their part. The court committed no error in allowing profert of the child to the jury.

We are, however, of the opinion that the court erred in excluding the evidence offered by the defendant of the association of the prosecutrix with others, and partieulaidy with another young man about the probable date of conception, and the circumstances of such association; the State having proved defendant’s (association with her about that time as affording an inference that he then had sexual intercourse with her. It seems clear to us that the proposed testimony of the witnesses Sellers and Barr, that covering the time of probable conception she was in the company of other men and that on one occasion nine months before the birth of the child she was in company of another man under circumstances affording opportunity for sexual intercourse, his attentions to her at that time, etc., etc., wfis competent in rebuttal of the inference intended to be and naturally afforded by the evidence introduced by the State as to the association of defendant with her about that time.

For the rejection of this evidence the judgment must be reversed. The cause is remanded. •