Robnett v. the People

Citation16 Bradw. 299,16 Ill.App. 299
PartiesJAMES M. ROBNETTv.THE PEOPLE, ETC.
Decision Date28 February 1885
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marion county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 6, 1885.

Messrs. CASEY & DWIGHT, for appellant; as to making profert of child, cited Risk v. People, 19 Ind. 152; People v. Carney, 29 Hun (N. Y.), 47.

As to evidence: Benham v. State, 91 Ind. 82; O'Brien v. State, 14 Ind. 469; Smith v. Nevlin, 89 Ill. 193; Farwell v. Warren, 51 Ill. 470; Tracy v. People, 97 Ill. 103; Deagling v. State, 56 Wis. 586; Ray v. Bell, 24 Ill. 444; Craig v. Rohrer, 63 Ill. 325; Johnson v. People, 94 Ill. 505.

Mr. H. C. GOODNOW and Mr. W. D. FARTHING, for appellees, cited R. S., 1883, p. 177, § 6; McFarland v. People, 72 Ill. 368; McElhaney v. People, 1 Bradwell, 548.

CASEY, P. J.

In this proceeding appellant is charged with bastardy. It is alleged that he is the father of the illegitimate child of the relatrix, Jennie J. Dee. The prosecution was brought in the County Court of Marion county, where, upon a trial, a judgment was rendered against appellant. He appealed the cause to the circuit court of that county, where, upon a trial before the court and a jury, he was again found to be the father of the child in question. The case is brought to this court by appeal. The errors assigned are:

I. The court erred in permitting plaintiff to make profert of the alleged bastard child to the jury as evidence in this case.

II. The court erred in the admission of evidence on behalf of the plaintiff.

III. The court erred in sustaining plaintiff's objections to questions asked by defendant on the cross-examination of the prosecuting witness, Jennie Dee.

IV. The court erred in sustaining objections to and ruling out evidence offered on behalf of the defendant.

V. The court erred in the instructions given for the plaintiff.

VI. The court erred in modifying instructions asked by the defendant.

VII. The court erred in overruling defendant's motion to set aside verdict and for new trial.

Exceptions were saved by counsel for appellant to the ruling of the court.

On the trial of the cause in the circuit court, appellees were allowed by the court, against the objections of appellant, to make profert of the child in question, or introduce it as evidence against appellant.

One of the errors assigned questions the ruling of the court in this respect. This question, so far as we have been able to ascertain, has been very seldom before the courts of this country.

The case of The People, etc., v. Carry, reported in 29 Hun, Supreme Court Reports of N. Y., was a proceeding against the defendant charging him with bastardy. On the trial of the cause in the court below, the district attorney was allowed to ask the relatrix, who was on the stand as a witness, to look at the child and tell what the color of its eyes was. The witness replied, “Its eyes are blue.” The court, in ruling upon this point, said, We are of the opinion that this was error.”

The evidence enabled the court and jury to compare the color of the child's eyes with those of the defendant, who was present in court. We do not regard this kind or character of evidence as safe or proper. It is uncertain and unreliable.

In the case of Petree v. How, reported in 4 Thompson & Cook, 85, it was held that such evidence was calculated to and probably did prejudice the defendant. That the court erred in allowing the evidence to go to the jury. The argument used in that case as to the color of the eyes, applies with equal force to the case now under consideration. Ordinary observation teaches us that in the same family of children different colors of hair and eyes are not unusual, and that it is not at all certain that the children resemble the reputed father. It certainly would be an uncertain, unsafe and dangerous doctrine to hold that the paternity of an illegitimate child might be shown by comparing the color of its hair and eyes with that of the alleged parent. It has been wisely held that such testimony does not create a circumstance in that character of case, because if admitted to go before the jury it might bring shame and disgrace upon the honest and best citizens in the community.

In the case of Risk v. The State, ex rel., etc., reported in 19 Ind. 152, which was a prosecution for bastardy, the court said: The State was allowed to give the bastard child in evidence, so that the jury might compare it with the defendant, who was then in court.” This seems to have been done without objection, and the court instructed the jury, on the part of the prosecution, that if they discovered a resemblance between the child and the defendant, they might regard it as a circumstance tending to prove that the defendant was its father.

The court said: “We doubt the right to introduce the child in evidence. We have seen no authority on the point. It would be a most uncertain rule of evidence, involving the necessity of giving the alleged father in evidence.

Besides it is a well established fact, at least to those who have made such subjects a study, that a child changes its primal appearance often and very much in the first three or four months of its existence. The record shows that the illegitimate child in the case now under consideration was less than four months old at the time of the trial in the circuit court. This fact if possible renders the testimony more uncertain.

In the case of the United States v. Collins, reported in first Cranch Circuit Court Reports, 592, the court refused to admit the testimony of witnesses to prove the likeness between the defendant and the child. This was an indictment against the reputed father for not supporting the bastard child.

In New England where most of the reported cases of this character are to be found, so far as we have seen, the decisions are to some extent conflicting on this subject. In the case of Keneston et ux v. Rowe, reported in 4 Shepley (Maine), 38, the defendant offered to prove that the child did not resemble him in form or complexion. This was a prosecution for bastardy and the child was more than fifteen years old, the defendant having been out of the State since the birth of the child. The court in substance said it was not the color or any peculiar conformation or form of features as matter of fact that were proposed to be proved. It was to prove a resemblance which is a mere matter of opinion. Witnesses on that subject, if they could have sight of the persons, the child and reputed father might be indefinitely multiplied without in the least affording any satisfactory ground of judgment, or final determination by the court or jury. Witnesses, except in some art, trade or profession, are not called upon to form comparisons and to testify to opinions arising therefrom, and there is nothing of art, trade or profession in the subject under discussion that we have been able to discern.

In the case of Young v. Makepeace, 103 Mass. 50, which was a prosecution for bastardy, the court in substance said: We think also the testimony to show points of dissimilarity between the bastard child and Dean, whom the defendant alleged was the father of the child, should not have been admitted. Even when there is a noticeable resemblance there may be equally marked points of dissimilarity. Points of dissimilarity not implying a difference of race do not even tend to prove paternity or to disprove it. They are of much less significance than even points of resemblance. In the case of Eddy v. Gray, 4th Allen (Mass.), 435, which was a proceeding against the defendant for bastardy; it was in substance said that the proof offered to...

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7 cases
  • State v. Palmberg
    • United States
    • Missouri Supreme Court
    • November 20, 1906
    ... ... State to introduce evidence of acts of intercourse subsequent ... to October, 1903. People v. Clarke, 33 Mich. 112; ... People v. Flower, 104 Mich. 449; People v ... Etter, 81 Mich. 570; People v. Robertson, 88 ... A.D. 198; ... ...
  • Land v. State
    • United States
    • Arkansas Supreme Court
    • October 28, 1907
    ...T. Wood, Judge; affirmed. Affirmed. Hunt & Toney, for appellant. 1. It is error to exhibit a bastard child to the jury on the trial. 16 Ill.App. 299; 19 Ind. 152; 24 Neb. 33; 23 Utah 541; Wise. 84. Also to show that the child resembles person charged to be its father, or to show color of it......
  • Flores v. State
    • United States
    • Florida Supreme Court
    • November 21, 1916
    ... ... Smith, 54 Iowa, 104, 6 N.W. 153, 37 ... Am. Rep. 192; State v. Danforth, 48 Iowa, 43, 30 Am ... Rep. 387; State v. Harvey, supra; Robnett v. People, ... 16 Ill.App. 299; Hanawalt v. State, 64 Wis. 84, 24 ... N.W. 489, 54 Am. Rep. 588; State v. Neel, 23 Utah, ... 541, 65 P. 494; Clark ... ...
  • State v. Neel
    • United States
    • Utah Supreme Court
    • June 15, 1901
    ...it is held improper to introduce the child in evidence for the purpose of showing a resemblance between it and the defendant. Robnett v. People, 16 Ill.App. 299; Risk State, 19 Ind. 152; Clark v. Bradstreet, 80 Me. 454, 15 A. 56, 6 Am. St. Rep. 221; Overlock v. Hall, 81 Me. 348, 17 A. 169; ......
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