Clark v. Bradstreet

• Decision Date: 02 July 1888
• Citation: 80 Me. 454,15 A. 56
• Parties: CLARK v. BRADSTREET.
• Court: Maine Supreme Court

15 A. 56

80 Me. 454

CLARK

v. BRADSTREET.¹

Supreme Judicial Court of Maine.

July 2, 1888.

Exceptions from superior court, Kennebec county.

Bastardy process. The verdict was in favor of the complainant. At the trial the complainant introduced the child, then six weeks old, in evidence, to show its resemblance to the alleged father. To this evidence the defendant alleged exceptions.

J. H. Potter, for plaintiff. H. M. Heath, for defendant.

FOSTER, J. This was a bastardy process, in which a verdict was rendered for the complainant. At the trial the child, then but six weeks old, was offered, admitted in evidence, and exhibited to the jury by the complainant, against the defendant's objection, and exceptions were taken. Notwithstanding the paternity of the child was sought to be established, and the putative father was defendant in the suit, we think the exceptions must be sustained. The only object for which it is claimed that the child was introduced in evidence and viewed by the jury, was to enable them to judge, from a comparison of its appearance, complexion, and features with those of the defendant, whether any inference could legitimately be drawn therefrom as to its paternity. In a case like this, where the child was a mere infant, such evidence is too vague, uncertain, and fanciful, and, if allowed, would establish not only an unwise, but dangerous and uncertain, rule of evidence. While it may be a well-known physiological fact that peculiarities of form, feature, and personal traits are oftentimes transmitted from parent to child, yet it is equally true, as a matter of common knowledge, that during the first few weeks, or even months, of a child's existence, it has that peculiar immaturity of features which characterize it as an infant, and that it changes often and very much in looks and appearance during that period. Resemblance then can be readily imagined. This is oftentimes the case. Frequently such resemblances are purely notional or imaginary. What may be considered a resemblance by one may not be perceived by another having equal knowledge of the parties between whom the resemblance is supposed to exist. If there should be a likeness of features, there might be a difference in the color

In bastardy proceedings, where the attorney for the prosecution instructs the prosecuting witness to turn the face of the bastard child so that the jury could observe it, which, upon objection, the court holds improper, there is no error of which defendant can complain. Ingram v. State, (Neb.) 37 N. W. Rep. 943 of the hair or eyes. As was said by the court in People v. Carney, 29 Hun, 47: "Common observation reminds us that in families of children different colors of hair and eyes are common, and that it would be a dangerous doctrine to permit a child's paternity to be questioned or proved by the comparison of the color of its hair or eyes with that of the alleged parent." Mr. Justice HEATH, in the case of Day v. Day, at the Huntingdon assizes in 1797, upon the trial of ejectment, where the question was one of partus suppositio, admitted that resemblance is frequently exceedingly fanciful, and therefore cautioned the jury in reference to such evidence. And in a trial in bastardy proceedings the mere fact that a resemblance is claimed would be too likely to lead captive the imagination of the jury, and they would fancy they could see points of resemblance between the child and the putative father. As in the case at bar, where the infant was but a few weeks old, such evidence, if allowed in determining the paternity of the child, would be exceedingly fanciful, visionary, and dangerous. The testimony of witnesses, where they have no special skill or knowledge in such matters, has never been admitted in this state or Massachusetts to prove a resemblance in the features between the child and the alleged father. Keniston v. Rowe, 16 Me. 38; Eddy v. Gray, 4 Allen, 438. Nor points of dissimilarity, not implying a difference of race. Young v. Makepeace, 103...