State v. Tedder , 258 N.C. 64 ( 1962 )

127 S.E.2d 786 (1962) 258 N.C. 64

STATE
v.
James Howard TEDDER.

No. 362

Supreme Court of North Carolina.

October 31, 1962.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. James F. Bullock for the State.

Harold R. Wilson, Winston-Salem, for defendant.

PER CURIAM.

"A child born in wedlock is presumed to be legitimate, and, as stated by Ruffin, C. J., in State v. Herman, 35 N.C. 503, quoting from Coke on Littleton, this presumption exists ``if the issue be born within a month or a day after marriage.'" West v. Redmond, 171 N.C. 742, 88 S.E. 341.

In the case of Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, this Court said: "Nothing is allowed to impugn the legitimacy of a child short of proof by facts showing it to be impossible that the husband could have been its father." State v. Green, 210 N.C. 162, 185 S.E. 670.

The proffered testimony of the defendant's witnesses was properly excluded by the court below. It was not positive proof of the fact of nonaccess. In fact, it had no logical tendency to prove nonaccess.

"* * * (E)vidence must have some logical tendency to prove a fact in issue in order to be competent. And a witness is not competent to testify as to the nonexistence of a fact when his situation with respect to the matter is such that the fact might well have existed without the witness being aware of it. * * *" Strong, North Carolina Index, Vol. II, Evidence, section 15, page 259; Johnson v. Southern R. R. Co., 214 N.C. 484, 199 S.E. 704; Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316.

A careful examination of the record in the trial below leads us to the conclusion that no prejudicial error has been shown that would justify a new trial.

No error.