State v. . Britt , 78 N.C. 439 ( 1878 )

Smith, C. J.

On the trial of the issue as to the paternity of the child, the examination of the mother taken before' the Justice, and charging the defendant to be the father,, was read in evidence to the jury.

Thereupon the defendant offered himself as a witness in his own behalf, and denied that he had ever had sexual intercourse with the woman.

The mother was then herself examined, and testified that such intercourse had taken place between the defendant and herself, and gave the time and place.

The defendant then proposed to prove in rebuttal of her testimony, and to sustain his own, that she lived on terms of intimacy with another man, that they had been seen together in the woods in the day time, and at night, and on one occasion, about nine months before the birth of the •child, occupying the same bed. The evidence on objection was ruled out and defendant excepted.

The defendant further offered to show hy the mid-wife that the child bore a resemblance to this' man. The Court rejected the testimony and defendant excepted. * ■

The only question before us is as to the admissibility of the evidence.

The first Act on this subject was passed in 1741, and declares that if a woman giving birth to a bastard child “shall on oath accuse any man of being the father of the bastard child, &c., such person so accused shall be adjudged, the reputed father

■ This Act denied all defence to a charge of bastardy made on the oath of the mother. In the year 1814, the Act was amended, and the examination of the mother declared to be prima fade evidence of the fact. Rev. Stat. ch. 12, § 4.

In the construction of the Act thus modified, it was held that to repel the statutory force of the mother’s oath, the defendant must show affirmatively that he is riot the father of the child by proof of non-access, impotence, or other natural defect inconsistent with his paternity. State v. Patton, 5 Ire. 180; State v. Wilson, 10 Ire. 131.

This last case was decided at August Term, 1849, and at the next succeeding session of the General Assembly (1850-’51) the law was again amended, and it was enacted that upon the trial of the issue of paternity of the child “the examination of the woman as aforesaid, taken and returned to Court, shall be presumptive evidence against the person accused, subject to be rebutted by other testimony which may be introduced by the defendant.” Bat. Rev. ch. 9, § 4.

At Juno Term, 1852, this Court was called on to construe the law in its present form, and to decide upon the admissibility of evidence, to impeach the veracity of the woman. State v. Floyd, 13 Ire. 382.

The evidence was declared to be competent, and Nash, J. in delivering the opinion and referring to the recent change, says; “Whatever of incongruity or of verbiage there may be in the Act, there can be no doubt of the meaning of the Legislature. They intended to let in evidence on the part of the defendant of a circumstantial character to show he was not the father of the child. Before that Act, he was inquired to -prove that he ivas not; now he is permitted to satisfy the j ury, if he can, by any evidence known to law, that the charge is false. The words of the Act are ‘subject to be rebutted by other testimony'; bjr what testimony is left at large. The defendant was therefore at liberty to assail the correctness of the evidence, to wit, the examination on the part of the State, by any testimony which had a tendency to show the jury that it was not true, or that they ought not to rely on it.”