Gaunt v. State

• Decision Date: 20 June 1888
• Parties: GAUNT v. STATE.
• Court: New Jersey Supreme Court

14 A. 600

50 N.J.L. 490

GAUNT

v. STATE.

Supreme Court of New Jersey.

June 20, 1888.

(Syllabus by the Court.)

Error to court of quarter sessions, Camden county; HUGO, WOOLSTON, and GAUNT, Judges.

Argued February term, 1888, before BEASLEY, C. J., and MAGIE and GARRISON, JJ.

Howard Barrow, for plaintiff in error. Richard S. Jenkins, for defendant in error.

GARRISON, J. This is an indictment for fornication, brought here by writ of error. In his argument before this court, the counsel for the plaintiff in error relied upon two points. The first of these was the omission of the state to prove that the complaining witness was a single woman. This exception is not tenable. The indictment, it is true, charges that the person with whom the defendant committed fornication was a single woman. The single state is, however, the natural, and, during early life, the only possible, one; nor is there any period at which it is necessarily terminated or merged into marriage in the absence, therefore, of testimony tending to the contrary, the presumption is that the celibacy which existed during puellescence continues. Therefore until drawn into actual question, no affirmative testimony on this point was required from the prosecution.

The other point presented was that the trial court refused to charge the jury "that they must find a verdict upon the testimony in the case from the mouths of witnesses, and not from their own view of the resemblance of the child alleged by the complaining witness to be the issue of the alleged fornication, and that, as matter of law, the jury had no right to consider whether the child looked like the defendant or not." It was probably the object of counsel to raise by this exception the question whether the resemblance of a child to its alleged parent may be considered by the jury, and, if so, upon what evidence. The record, however, does not present so broad a question. Neither upon objection to evidence, nor upon comment of counsel, nor upon exception to the charge of the court, is error assigned in this particular. At the close of the trial the court was requested to charge the jury that they had no right to consider the question of resemblance, although the natural material for such an inquiry had been viewed by them as a necessary incident of the trial. It is upon an exception to the refusal of the court to so charge that error is assigned. I think it is extremely doubtful whether error can be predicated upon the refusal of a court to charge against intangible impressions, arising naturally from the incidents of a trial, where no foundation, by objection or otherwise, has been laid. If we give, however, to the exception under consideration the fullest significance claimed for it, two questions are presented: (1) Is the resemblance between the child and the alleged father a relevant matter? And, (2) if relevant, should it be determined by inspection, or by the testimony of witnesses?

In considering the first of these questions, viz., as to the relevancy of resemblance as an element of proof, it is clear that testimony of this character, must be treated as a class. Thus viewed, whatever opinion may be held as to the illusory nature of such evidence in cases like the present, there is no question that, as a class, resemblances are admitted wherever relevant. In eases involving handwriting, for instance, it has always been deemed pertinent to have a comparison of hands. Likewise in sales by sample, in patent cases, in trade-mark and infringement suits, resemblance is of the essence of the proof. Nor can it be said that the tendency of recent applications of this rule has been towards restriction,—rather the reverse. In the courts of a sister state, New York, operas have been performed in court, and comic songs sung, plagiarized papers have been read, and the so called materialization of spirits exhibited,—all within the scope of the doctrine of the relevancy of resemblance; while in a case now pending in the courts of Pennsylvania a board of experts have been ordered to inspect a certain contrivance called the "Keeley Motor," with a view to the determination of its resemblance or mechanical equivalency to a motor described in plaintiff's partnership bill. Examples of the application of the same rule to family likeness are not wanting. In the notorious Douglass Case, house of lords 1769, Lord MANSFIELD allowed the resemblance of the appellant and his brother to Sir John Stewart and Lady Jane Douglass to be shown, as well as their dissimilarity to those persons whose children they were supposed to be; while as late as 1871, Lord Chief Justice COCKBURN, in the Tichborne Case, held that the resemblance of the claimant to a family daguerreotype of Roger Tichborne was relevant, and intimated that comparison of features between the claimant and the...