Sullivan v. Hugly , 32 Ga. 316 ( 1861 )

By the Cowrt

Lyon, J.,

delivering the opinion.

What the midwife, Mrs. Cooper, said of the child, at the time of its birth, was hearsay, not evidence, and properly rejected. The statement was nothing but an opinion, and if sustained by her oath would have been of but little weight • without, it was a mere idle declaration. The opinions of persons cannot be proven or used as evidence in this way— that is, a witness will not be permitted to prove the opinions of others on any question. Robbins vs. Treadway, 2 J. J. Marsh, 542.

There is but one other point in the case, and that is whether the verdict is so strongly and decidedly against the weight of the evidence as to require us to send the case back for a new trial. The only question in issue before the jury was, whether the child, Franklin, under whom complainants claim, was the legitimate offspring of Amos Hugly and his wife, Caroline.

At the birth of the child, Amos Hugly, and its mother, Caroline, were husband and wife, living together; had been for years preceding, and so continued for years afterward, and until the relation was dissolved by death. Both parents having died, and then the child, and its estate administered by the defendant in the Court below, this bill was filed by the complainants as its next of kin, on the father’s side, as a part of the heirs-at-law of said deceased child. The defendant resisted their right to a distribution, insisting, that although said Franklin was born in the wedlock of the said Amos and his wife, Caroline, he was not the issue of the said Amos, but that he was the illegitimate offspring of an adulterous intercourse between the said Caroline and a negro.

On the hearing of that issue, the jury, upon the proofs' submitted, rendered a verdict in favor of the complainant, and the legitimacy of the child.

2. No question that has been before this Court has been more carefully considered and better settled than that involved in this record—adulterine bastardy; and the rule, as settled, is, “that although the birth of a child in wedlock raises a presumption that such child is legitimate, yet that this presumption may be rebutted, both by direct and presumptive evidence; and in arriving at a conclusion upon this subject, t^ jury may not only take into their consideration proof tendi/ig to show the physical impossibility of the child born in wedlock being legitimate, but they may decide the question of paternity by attending to the relative situation of the parties, their habits of life, the evidence of conduct and. declarations connected with conduct, and to any inductions which reason suggests.” In other words, that the jury are not limited in their inquiries to the “ non access,” or physical impotency of the husband, but. that they must act upon any evidence that will show the absolute impossibility of the husband’s being the fatlier of the wife’s child, from whatever cause that impossibility might arise. Wright vs. Hicks, 12 Ga., 158. S. C., 15 Ga., 160.

But while the maxim of pater est quern nuptiae demonstrant may be thus overturned and defeated, the Courts will not allow it to be disturbed upon light, unsatisfactory, or mere probable grounds. Besting, as the maxim does, on the solid foundation of public utility, the repose of families and the tranquillity of marriages, it will be presumed in all its force, unless combated by proofs stronger and more convincing. It is to be considered as the truth until it is destroyed. “The general presumption will prevail, except a case of plain, natu-. ral impossibility is shewn. I will not say the improbability of his being such, for upon the ground of improbability, however strong, I would not venture to proceed.” Lord Ellenborough in The King vs. Luffe, 8 East., 193.

The evidence relied on by the defendant to overcome the presumption of legitimacy, are the opinions of three witnesses, Crawford, and his wife Margaret L., and Dr. Hammond. Crawford and his wife were near neighbors of Hugly and his wife at the birth of the child, Fránklin, and from an examination at or near that time, they were of the opinion that the child was the descendant of a negro—that he was half negro. They say that he was of dark color, curly, black hair, and low forehead. Neither of these witnesses are experts, or profess any skill in physiology, genealogy^or ethnology. They saw that the child was of a very dark §kin, had a low forehead, with short, curly, black hair, and fr&m these they infer, as neither the father nor mother possessed\any of these characteristics, that the child was begotten by a Aegro, and not the husband. The testimony of Dr. Hammond is to the same purport, but is much stronger and more important, from the fact, that he is a scientific and learned gentleman on the subject of the races, and examined the child at different times “closely, for the purpose of ascertaining whether it was a white child or a mulatto.”- He found it to be “ wanting in many developments existing in its parents,’ when he considered together with their ancestors on either side “as good portraitures of the unadulterated white race,” “ and, instead, was indelibly impressed with those pertaining to the negro variety,”—“skin dark, resembling the mulatto, or half blood, eyes large and prominent, nose short, and hair black—the facial angle deficient.” He concluded that the child was “the offspring of a negro—in his opinion, an adulterine bastard.” If these opinions were infallible, then it was an absolute impossibility for the child to have been the legitimate offspring of Amos Hugly, but they are not. The child, notwithstanding these traits or characteristics, might have been the child of Amos Hugly. We constantly see departures in the negro and white races, from the peculiar and natural characteristics of these respective varieties, more glaring and striking than those pointed out by these witnesses, and yet the parents of the descent can not be questioned.

The defect in the evidence is, that there is not enough of concurrent testimony to this point to overcome the legal presumption in favor of the legitimacy. The examinations were made when the child was quite young, and before its features were fully developed. To sustain the issue, more witnesses should have been brought to the examination. The testimony of one physician, learned and skillful, as he was, should have been corroborated by that of others skilled like himself, and the examination should have continued down to his death. Now, after the child was removed with its parents to the county of Chattooga, among strangers to them and their antecedents, no one seems to be impressed with the'idea that there is anything strange or peculiar in the appearance of the child, or that it vras of negro descent. At léast no witness from that locality is introduced to testify to this point, whose testimony supports the issue. One witness, Harlon, was, sworn, who knew them in Chattooga. He not only does not say anything about the child being of negro descent or presenting that appearance, but he says hé knew the child well; saw it frequently; it was always treated kindly by them, and both husband and wife claimed it as their child. In addition to this, it was in evidence that Amos Hugly, the father, had no doubt on the subject, although his attention was called directly to the fact; he rejected the idea indignantly. This was very strong evidence in support of the legal presumption—sufficient of itself to overcome the effect of the opinions of the other witnesses—for the father has an opportunity of judging of the legitimacy of the birth of his child that others are not supposed to have. Besides all this, there is no evidence of any kind, either directly or indirectly, that-the wife was guilty of adultery at all, unless it be taken for granted that the child is the offspring of a negro, and the adultery be presumed from that fact. The evidence is altogether insufficient to destroy the presumptions in favor of the legitimacy of the child and the innocence of the mother.

But suppose that this Court was of the opinion, from the evidence, that the child was half negro, and therefore necessarily an adulterine bastard, which opinion we do not entertain. What right have we to overturn this verdict ? The question is one peculiarly for the jury in cases of this kind, and the evidence, to support the charge of bastardy, “ must be of such facts and circumstances as are sufficient to prove to the satisfaction of the jury that the husband could not, by the laws of nature, be the father of the child.” Ranbury Claim of Peerage, 2 Selw., N. P., 709. Shall' this or any other Court under that rule, in cases like this, say that the jury shall be satisfied with this or that kind of evidence, especially when the whole charge rests upon the opinions of witnesses against the maxim and the deliberately expressed declaration of the father that the child was his ? We think not. The most that the evidence could amount to is to raise a doubt, and whenever that is the case, the finding must be in favor of the innocence of the mother and the presumptions of the law.

Let the judgment be affirmed.