State v. Britt

• Decision Date: 31 January 1878
• Court: North Carolina Supreme Court
• Parties: STATE v. ROBERT BRITT.

78 N.C. 439

STATE

v.ROBERT BRITT.

Supreme Court of North Carolina.

January Term, 1878.

ISSUE of Paternity in a Proceeding in Bastardy tried at Fall Term, 1877, of ROBESON Superior Court, before Moore, J.

The case is sufficiently stated by THE CHIEF JUSTICE in delivering the opinion of this Court. Verdict of guilty. Judgment. Appeal by defendant. (See State v. Bowles, 7 Jones 579.)

Attorney-General, for the State .

Messrs. W. F. French, and N. McLean, for defendant .

SMITH, C. J.

On the trial of the issue as to the paternity of the child, the examination of the mother taken before the Justice, and charging the defendant to be the father, was read in evidence to the jury.

Thereupon the defendant offered himself as a witness in his own behalf, and denied that he had ever had sexual intercourse with the woman.

The mother was then herself examined, and testified that such intercourse had taken place between the defendant and herself, and gave the time and place.

The defendant then proposed to prove in rebuttal of her testimony, and to sustain his own, that she lived on terms of intimacy with another man, that they had been seen together in the woods in the day time, and at night, and on one occasion, about nine months before the birth of the child, occupying the same bed. The evidence on objection was ruled out and defendant excepted.

The defendant further offered to show by the mid-wife that the child bore a resemblance to this man. The Court rejected the testimony and defendant excepted.

The only question before us is as to the admissibility of the evidence.

The first Act on this subject was passed in 1741, and declares that if a woman giving birth to a bastard child “shall on oath accuse any man of being the father of the bastard child, &c., such person so accused shall be adjudged the reputed father.”

This Act denied all defence to a charge of bastardy made on the oath of the mother. In the year 1814, the Act was amended, and the examination of the mother declared to be prima facie evidence of the fact. Rev. Stat. ch. 12, § 4.

In the construction of the Act thus modified, it was held that to repel the statutory force of the mother's oath, the defendant must show affirmatively that he is not the father of the child by proof of non-access, impotence, or other natural defect inconsistent with his paternity. State v. Patton, 5 Ire. 180; State v. Wilson, 10 Ire. 131.

This last case was decided at August Term, 1849, and at the next succeeding session of the General Assembly (1850-'51) the law was again amended, and it was enacted that upon the trial of the issue of paternity of the child “the examination of the woman as aforesaid, taken and returned to Court, shall be presumptive evidence against the person accused, subject to be rebutted by other testimony which may be introduced by the defendant.” Bat. Rev. ch. 9, § 4.

At June Term, 1852, this Court was called on to construe the law in its present form, and to decide upon the admissibility of evidence to impeach the veracity of the woman. State v. Floyd, 13 Ire. 382.

The evidence was declared to be competent, and NASH, J. in delivering the opinion and referring to the recent change, says; “Whatever of incongruity or of verbiage there may be in the Act, there can be no doubt of the meaning of the Legislature. They intended to let in evidence on the part of the defendant of a circumstantial character to show he was not the father of the child. Before that Act, he was required to prove that he was not; now he is permitted to satisfy the jury, if he can, by any evidence known to law, that the charge is false. The words of the Act are ‘subject to be rebutted by other testimony’; by what testimony is left at large. The defendant was therefore at liberty to assail the correctness of the evidence, to wit, the examination on the part of the State, by any testimony which had a tendency to show the jury that it was not true, or that they ought not to rely on it.”

RUFFIN, C. J., in a separate concurring opinion, after referring to the terms “““ prima facie” and “ presumptive” evidence, and the Legislative intention in the change, says; “Keeping that circumstance in mind, and having regard to the construction given to the expression “prima facie...