Hanawalt v. State

Citation64 Wis. 84,24 N.W. 489
PartiesHANAWALT v. STATE.
Decision Date22 September 1885
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Error to circuit court, Waupaca county.L. L. Soule and G. W. Cate, for plaintiff in error.

L. F. Frisby, Atty. Gen., for defendant in error.

TAYLOR, J.

This was an action to charge the plaintiff in error with the support and maintenance of a bastard child. On the trial in the circuit court the state was permitted, against the objection of the plaintiff in error, to bring into court, and exhibit to the jurors for their inspection, as evidence in the case, the child of which he was charged with being the father; such child then being less than one year old. This is assigned as error in this court. The plaintiff also assigns as error that the counsel for the state was permitted to comment to the jury and draw their attention to the alleged similarity of the ears of the child to the ears of the plaintiff in error, as well as to the ears of the plaintiff's father, who was also in court, and in the presence of the jury, the child, at the time, being absent. Upon the question of the propriety of exhibiting the child to the jury as evidence in cases involving its paternity, the decisions of the courts are not in harmony. In North Carolina the supreme court of that state hold that such exhibitions may properly be made. See State v. Woodruff, 67 N. C. 89;State v. Britt, 78 N. C. 439;Warlick v. White, 76 N. C. 175; and State v. Bowles, 7 Jones, (N. C.) 579. The same was held by the supreme court of Iowa in State v. Smith, 54 Iowa, 104;S. C. 6 N. W. Rep. 153. In this last case the child was over two years old; but, in the case of State v. Danforth, 48 Iowa, 43, the same court held it was improper to exhibit to the jury a child only three months old. In Eddy v. Gray, 4 Allen, 435;Jones v. Jones, 45 Md. 144;Keniston v. Rowe, 16 Me. 38, the court hold that testimony of witnesses that the child looks like or resembles in appearance the person charged to be the father is not admissible, and in Reitz v. State, 33 Ind. 187, and Risk v. State, 19 Ind. 152, it was held error to allow the prosecution to give the child in evidence, so that the jury might compare it with the defendant who was present in court.

In the Douglas Case, Lord MANSFIELD is reported as saying: “I have always considered likeness as an argument of a child's being the son of a parent; and the rather as the distinction between individuals in the human species is more discernible than in other animals. A man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a difference in the gestures, the smile, and various other things, whereas a family likeness runs generally through all these, for in everything there is a resemblance; as of features, size, attitude, and action.” This language attributed to Lord MANSFIELD is taken from Wills on Circumstantial Evidence, p. 123. This author, on the next page, says that in a Scotch case, when the question was who was the father of a certain woman, an allegation that she had a strong resemblance in the features of the face to one of the tenants of the alleged father was held not to be relevant as being too much a matter of fancy and of opinion to form a material article of evidence. In the case of Jones v. Jones, supra, the learned judge who wrote the opinion refers to the language used by Lord MANSFIELD in the Douglas Case, and disapproves of it as authority, and thinks it has not been followed as a precedent in the English courts; and he quotes with approval the language of Justice HEATH in the case of Day v. Day, decided in 1797, in which the learned judge stated to the jury “that resemblance is frequently exceedingly fanciful, and he therefore cautioned the jury as to the manner of considering such evidence.” The learned judge in the case of Jones v. Jones, supra, in disapproving of the language used by Lord MANSFIELD, says: We all know that nothing is more notional in the great majority of cases. What is taken as a resemblance by one is not perceived by another with equal knowledge of the parties between whom the resemblance is supposed to exist.”

It should be remembered that in the Douglas Case, and the Maryland case, the question of parentage was as to a person who was full grown. So that if there is anything certain in family likeness it would be fully developed, and if in any case such claimed likeness could be considered by a jury in determining the question of parentage, it would be in a case of that kind. In the case of Jones v. Jones, the court seemed to be of the opinion that, “when the parties are before the jury, and they can make the comparison for themselves, whatever resemblance is discovered may be a circumstance, in connection with others, to be considered.” In any case this kind of evidence is inherently unsatisfactory, as it is a matter of general knowledge that different persons, with equal opportunities of observation, will arrive at...

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37 cases
  • State v. Gunderson
    • United States
    • United States State Supreme Court of North Dakota
    • November 22, 1913
    ......377;. People v. Dane, 59 Mich. 550, 26 N.W. 781; People v. Kahler, 93 Mich. 625, 53 N.W. 826. . .          The. prosecuting attorney cannot make damaging statements about. the defendant, when there is no proof to sustain them. Coleman v. State, 87 Ala. 14, 6 So. 290;. Hanawalt v. State, 64 Wis. 84, 54 Am. Rep. 588, 24. N.W. 489, 6 Am. Crim. Rep. 65; Brown v. State, 103. Ind. 133, 2 N.E. 296; People v. Mitchell, 62 Cal. 411; State v. Ulrich, 110 Mo. 350, 19 S.W. 656;. Stone v. State, 22 Tex.App. 185, 2 S.W. 585. . .          Prejudicial. statements of ......
  • Redman v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 1, 1911
    ...for incest, the Hilton Case was for adultery, and the Gray Case was a prosecution for rape. To the same effect are Hanawalt v. State, 64 Wis. 84, 24 N. W. 489, 54 Am. Rep. 588; State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387. These cases involved the question as to the paternity of a young ......
  • State v. Palmberg
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1906
    ......525;. State v. Wilson, 91 Mo. 410; State v. Patrick, 107 Mo. 147; Champagne v. Hamey, 189. Mo. 722. (4) The court erred in permitting the child to be. exhibited to the jury, over the objection of defendant. State v. Neel, 23 Utah 541; People v. Carney, 29 Hun 47; Hanawalt v. State, 64 Wis. 84; Reitz v. State, 33 Ind. 187; Risk v. State, 19 Ind. 152; Robnet v. People, 16. Ill.App. 299; Young v. Makepeace, 103 Mass. 50;. Clark v. Bradstreet, 80 Me. 464; Barnes v. State, 39 S.W. 684; State v. Harvey, 112 Iowa. 416. . . ......
  • State v. Nyhus
    • United States
    • United States State Supreme Court of North Dakota
    • December 10, 1909
    ...v. Dunning, 85 N.W. 589; People v. Smith, 56 N.E. 1001; People v. Payne, 91 N.W. 739; Mason v. State, 81 S.W. 718; 12 Cyc. 579; Hanawalt v. State, 24 N.W. 489, People v. Mitchell, 62 Cal. 411; Raggio People, 26 N.E. 377; People v. Dane, 26 N.W. 781; Sasse v. State, 32 N.W. 849; People v. Ev......
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