Flores v. State

• Decision Date: 21 November 1916
• Citation: 72 Fla. 302,73 So. 234
• Parties: FLORES v. STATE.
• Court: Florida Supreme Court

73 So. 234

72 Fla. 302

FLORES v. STATE.

Florida Supreme Court

November 21, 1916

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Bastardy proceeding by the State of Florida against Armando Flores. There was a judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

General objections to evidence are without weight in an appellate court if the evidence is admissible for any purpose.

In a bastardy proceeding, the exhibition of an infant three months old to the jury for the purpose of having the jury compare it with the defendant to detect resemblances between the infant and reputed father is error.

In a bastardy proceeding, the amount which the statute requires the defendant to pay when the issue is found against him, for the necessary incidental expenses attending the birth, may be ascertained by the court without the intervention of the jury.

COUNSEL

Macfarlane & Chancey, of Tampa, for plaintiff in error.

T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

ELLIS J.

This was a bastardy proceeding in which the plaintiff in error who was the defendant below, was adjudged to pay to J. G., the mother of the bastard child, the sum of $50 yearly for a period of 10 years for the support, maintenance, and education of the child, and the incidental expenses attending the birth of the child, which amounted to $57. There was evidence to show that the expenses attending the birth of the child amounted to that sum. The jury, however, did not assess any damages. The verdict simply found the defendant below, Armando Flores, to be the father of the bastard child of J. G.

To that judgment a writ of error was taken and four errors assigned. Two points of law are presented by the record and argued by counsel.

At the trial the mother of the child, over the defendant's objection, was permitted to exhibit the infant to the jury for the purpose of having the jury compare it with the defendant and consider its resemblance to the alleged father, if any, in determining its paternity.

At the time of the trial the child was within a few days of being three months old. It was insisted by the defendant's counsel that the exhibition of the child to the jury for the purpose above stated was 'illegal and contrary to law'; that the evidence was 'immaterial and irrelevant,' and would tend to prejudice the jury against the defendant. These objections were most general in character, and, according to the rule frequently announced by the court, are entitled to little consideration, if the evidence was admissible for any purpose whatsoever. Lewis v. State, 55 Fla. 54, 45 So. 998; Putnal v. State, 56 Fla. 86, 47 So. 864; Danson v. State, 62 Fla. 29, 56 So. 677.

The evidence, as shown by the bill of exceptions, consisted of the testimony of the mother of the child, who said that she was 28 years of age, was born in Spain, and that the defendant was the father of her child; that the child was born in February, 1916, and that the illicit intercourse between the mother and the defendant began in May, 1915, while the mother was employed as a maid in a lodging house where the defendant and 10 or 12 other men had rooms; the testimony of a witness by the name of Balma Ceida, who said that the expenses attending the birth of the child amounted to $57; the testimony of the defendant, who denied that he ever had sexual intercourse with the child's mother, and the exhibition of the child before the jury. The introduction of the infant in evidence that the jury might compare it with the defendant and consider its resemblance to the putative father, if there was any resemblance, in determining the paternity of the child, might have had a strong influence upon the minds of the jury in arriving at the verdict which they rendered.

What comparisons were made by the jury between the child and the putative father we have no means of knowing; the record does not disclose, nor indeed could it disclose, what resemblances, actual or fancied, the jury perceived between the child and the defendant. There may have been resemblances between the defendant and the child in the color of the eyes and hair, the shape of the ears, nose, mouth and hands, and other features; on the other hand such resemblances may have been imaginary, purely notional, and if opportunity for so doing had been given the defendant, any fancied or imaginary resemblance might have been easily dispelled by close and careful comparison. The defendant, however, could not know what comparison each juror made when the child was exhibited. What to the defendant might have appeared as a dissimilarity to one or more jurors might have appeared as a striking resemblance, while other jurors, ignoring this one point of resemblance might have discovered others which they fancied existed, and so the verdict may have rested, in a large measure, upon the variant opinions of the jurors based on facts not established by evidence, but which existed in the minds of the jurors as they severally fancied this or that resemblance between the child and the putative father to appear. As Mr. Justice Ladd of the Supreme Court of Iowa, in State v. Harvey, 112 Iowa, 416, 84 N.W. 535, 52 L. R. A. 500, 84 Am. St. Rep. 350, said:

'How could a new trial be ordered because of the insufficiency of evidence in such a case?'

In the case at bar the child was exhibited to the jury, not for the purpose of showing any peculiarity of color or features, but merely to show a resemblance between it and its putative father, which was a matter of opinion, and that resting not upon any specific fact, but a vague, uncertain, and perhaps fancied resemblance of the immature features of the child to those of the defendant.

An examination of the decisions of the courts of last resort in other jurisdictions reveals nothing more than that the courts are in irreconcilable conflict upon the question of the admissibility of such evidence. On the one hand, it is maintained that while it may be a well-known physiological fact that peculiarities of form, feature, and personal traits are oftentimes transmitted from parent to child, it is equally true as a matter of common knowledge that during the first few months of a child's existence it has that peculiar immaturity of feature which characterizes it as an infant and that it changes often and very much in looks and appearance during that period. On the other hand, it is maintained that the weight to be given to such evidence is for the jury, and its weakness or uncertainty affords no reason for excluding it. This summing up of the decisions in this country upon the question is contained in 3 R. C. L. p. 764, from the text of which the above language is taken. Our examination of the authorities referred to in the footnotes to the above citation, and those referred to in the briefs of counsel and found by our own research, convince us of the conflict of opinion on the question of the admissibility of such evidence where the child exhibited is only three months old when no queston of the race or color of the bastard child's father is involved, but even in such case the child is exhibited to the jury to show some peculiarity of features or color, and not for the purpose of general comparison to discover resemblance between it and the defendant.

Mr. Wigmore in his work on evidence says that the sound rule is to admit the fact of similarity of specific traits, however presented, provided the child is in the opinion of the trial court old enough to possess settled features or other corporal indications. 1 Wigmore on Evidence, p. 222. We think that this rule is supported by the better reason, and is the one that should be followed in the absence of any statute permitting the exhibition to the jury of a child of whatever age in bastardy or other proceedings involving the paternity of the child, to the end that the jury may make its own comparisons and form its own conclusions as to particular or general resemblances.

If the rule as suggested by Mr. Wigmore is followed, the objection to the evidence on account of its inherent weakness and unreliability would be largely, if not entirely, removed. In the first place the trial court would have passed upon the question as to whether the child possessed features or other corporal indications of sufficient development to permit a comparison between them and those of the defendant; in the second place, the particular features or other corporal traits claimed to be possessed by the child would be by the adoption of the rule brought specifically to the jurors' attention, and the comparison made with reference only to such features or corporal traits. It seems to us that to permit an issue of such grave consequences to be determined against a defendant in a bastardy proceeding upon the imaginary, fancied, or notional general resemblance between a child of a week old, or even a few months old, and the...