Opinion
August Term, 1849.
On the trial of an issue in the case of bastardy, under the act of 1836, Rev. St., ch. 12, sec. 4, the examination of the woman becomes full proof of the fact of paternity, and the jury is bound so to find, unless the defendant shall show the fact not to be so, and this he can do only by proof of impotence or nonaccess at such time as by the law of nature he could be the father. Evidence to show the improbability of his being the father is inadmissible.
APPEAL from the Superior Court of Law of CLEVELAND, at Fall Term, 1848, Manly, J., presiding.
This is a proceeding under the act of 1836, commonly called the bastardy act, instituted to subject the defendant to the maintenance of the bastard child of Rebecca Moody, as the father of it. On the trial of the issue the State read to the jury the examination of Rebecca Moody and rested its case. The defendant, then, as material and pertinent to the maintaining of the negative of the issue and rebutting the prima facie case made by the State, offered to prove that Rebecca Moody was a woman of bad character; that she lived in the house of her sister and brother-in-law, to whom she had borne several children, (50) and was in the habit of sexual intercourse with him; that the relator had, in conversation with divers persons, declared that the defendant was not the father of her child, and that the defendant was a man of good character. All this testimony was rejected by the court on the ground of its incompetence, as being immaterial in sustaining the issue on the part of the defendant. There was a verdict for the State, and the defendant appealed.
Attorney-General for plaintiff.
Bynum for defendant.
We had thought, and are still of opinion, that the questions raised in this case were settled in that of S. v. Patton, 27 N.C. 180. There it was held that, although the examination of the woman was in itself, upon the trial of the issue, but prima facie evidence that the defendant was the father of the child, yet in the absence of testimony showing that he was not, it is conclusive of the fact, and the jury is bound in law to find accordingly; that the issue is given to the defendant on his demand and is emphatically his issue, and though he maintains a negative in its investigation, he is the actor, and is bound to prove that he is not the father; and, to do that, it is not sufficient for him to raise a doubt upon the question. We have heard nothing, upon the present occasion, to shake our confidence in the correctness of that decision, and, if it be sound, his Honor committed no error in rejecting the evidence offered, because it was immaterial to the establishment of the issue which the defendant had undertaken to affirm, and, at farthest, could but raise a doubt as to the fact, for it might be all true and still the defendant be guilty. It has been urged, however, that such testimony was received by the judge below, who tried Patton's (51) case, and its reception sanctioned by this Court. Upon that occasion the testimony was admissible, not for the purpose of contradicting the examination, but of impeaching the oral testimony of the woman herself, who was examined as a witness in the cause. But another answer is, that it was received without objection, and his Honor, the presiding judge, left no doubt in what light he received it, by stating to the jury that even supposing her credibility on the trial to have been weakened or destroyed, "that did not show that he (the defendant) was not the father of the child." But on examining the expression relied on, used by this Court, it will be found to apply, not to the reception of the testimony, but to the charge of his Honor. It has again been urged that the opinion in Patton's case is not sound, for two reasons: first, because it takes away from defendants the protection provided for them by the act of 1836. In this, as in any other case, it is our duty to give such a construction to a statute as will carry out the intention of the Legislature. One of the rules by which this intention is to be ascertained is the mischief to be remedied. As the law stood upon the passage of the act of 1814, the paternity of a bastard child was ascertained and fixed by the examination of the woman; so much so that if the child, when born, should prove to be black, the defendant had no redress in a court of law, and it was no answer to the charge that, either from age, accident or disease, he was impotent — he was bound to maintain the child. This was the evil the act of 1814 intended to remedy. And the Legislature had an entire right to model the remedy as they thought the good of the community required. They have done so by saying to the accused, You may, if you please, submit the question of your guilt to a jury; but if you do so, the burthen of showing your innocence shall be on you; for the examination of the woman shall be sufficient to convict you, unless you show you are not the father of the child — you must show the fact. Does this leave the party where the act of 1814 (52) placed him? Clearly not. The second objection is that the opinion in Patton's case gives to the term, prima facie, a force and extent not contemplated by the Legislature; that they meant no more than the examination should supersede the necessity of the introduction of the woman as a witness — that evidence, in law, was not proof. It is very certain evidence and proof are not the same, one being the cause and the other the effect. The argument of the defendant would, upon this point, be complete, but for the phraseology of the act. If the Legislature intended that the examination should have no other effect than that contended for by the defendant, they would have contented themselves by simply making it evidence. They have not done so, but directed to what extent it shall be. We have no right to presume that the makers of the law did not understand the legal phrase used by them. When, therefore, they say that the examination shall be prima facie evidence, they obviously must mean what common law meant, that, if unanswered, the examination fixes the paternity of the child, and the jury must find that the defendant is guilty. In such case, therefore, it is both evidence and proof. In many cases it may operate great hardships; to remedy this is the business of the Legislature. To admit the testimony offered in this case would be in effect to repeal the act of 1814, and throw all the bastards of the country upon the public. But the principle adopted in that act is no novelty. It is the application of an old and familiar rule of evidence. The law presumes all children born in wedlock to be legitimate, until he who denies it establishes the contrary. This is done by showing either impotency on the part of the husband or nonaccess, both of which come under the principle of a natural impossibility that the husband could be the father. This doctrine of impotency was established as early as the reign of the first Edward. See Foxcraft's case, reported in 1st (53) Rolle Abr., 359, and cited Starkie on Evidence, 219. In the Banberry Peerage case, 2 Selwyn Nisi Prius, the judges decided that the evidence to prove a husband was not the father of his wife's child must be of such facts and circumstances as were sufficient to prove that no sexual intercourse had taken place between them at any time, when by such intercourse the husband could, by the laws of nature, be the father of the child. Each of these defenses stands upon the same ground, that is, natural impossibility that the husband could be the father, and nothing short of this impossibility will bastardize such issue. It was further urged in this case that the evidence rejected had a tendency to support the defense, and was on that account admissible. If the nature of the issue which the jury were trying, and the effect given by the act of 1814 to the examination of the woman, be considered, it will be seen the evidence could have, legitimately, no such effect, and was, therefore, properly rejected. The defendant, by his plea, denied he was the father of the child — the issue was as to that fact, and it was necessary for him to prove that he was not. It was not sufficient for him to create a doubt as to the fact. The principle was clearly stated to the jury, and it is a rule that no facts or circumstances are admissible in evidence unless they have a tendency to prove or disprove the issue joined. If all the rejected testimony had been received, what tendency could it have in proving that the defendant could not be the father of the child? To give it its utmost weight, it would not go further than to excite a doubt as to the fact. Every portion of that testimony might be true, and yet the defendant be guilty. In Lowas v. Holmden, 2 Str., 940, in which the bastardy of a child of a married woman was (54) the inquiry, evidence of inability on the part of the husband from disease was admitted, but the evidence amounting to improbability only was thrown out, as it was shown the husband had access to his wife. So, here, the most that could be claimed for the rejected testimony was that it might show an improbability that the defendant was guilty. But there is another ground upon which the testimony offered for the purpose of discrediting the woman was properly rejected. She was not a witness in the case. Where the State does introduce the mother, she then stands before the jury as any other witness as to any facts deposed to by her out of her examination. As was said in Patton's case, if, after her examination before the magistrate, she had been convicted of perjury, it would not take from her examination its legal effect and operation under the act of 1814.
We repeat that we see no reason to depart from the opinion expressed in Patton's case. On the trial of every issue in the case of bastardy, under the act of 1814, the examination of the woman becomes full proof of the fact of paternity, and the jury is bound so to find, unless the defendant shall show the fact not to be so. And this he can do only by proof of impotence or nonaccess at such time as by the law of nature he could not be the father, and the testimony offered in this case was properly rejected.
PER CURIAM. Judgment affirmed.
Cited: Johnson v. Chapman, 45 N.C. 218; Clark v. R. R., 60 N.C. 112.
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