State v. Danforth

• Decision Date: 07 March 1905
• Citation: 73 N.H. 215,60 A. 839
• Parties: STATE v. DANFORTH.
• Court: New Hampshire Supreme Court

60 A. 839

73 N.H. 215

STATE

v. DANFORTH.

Supreme Court of New Hampshire. Belknap.

March 7, 1905.

Transferred from Superior Court; Chamberlin, Judge.

James Danforth was convicted of rape on a female under 16 years of age. Transferred from superior court by Chamberlin, J., on defendant's exceptions. Exceptions overruled.

The woman had a child born in July, 1904. Subject to exception, the state was permitted to exhibit the child to the jury, and to argue from peculiarities of features claimed to be common to the child and the defendant, and a general resemblance between them. After verdict the defendant moved to set the same aside and for a new trial on the ground of alleged misconduct of the state's counsel and because of newly discovered evidence. The misconduct alleged was that counsel for the state, after exhibiting the child to the jury, upon returning it to the mother, who sat within the bar, kissed the child in the presence of the jury. The act was denied by the state's counsel, but they were not required to submit evidence, as the court held that the act, if it occurred, was not prejudicial to the defendant, and that the trial was not rendered unfair. Upon cross-examination the mother of the child answered in the negative various inquiries as to her more or less intimate association with other men. The newly discovered evidence tended to contradict her in these particulars. The court ruled that the evidence was not cause for a new trial, as it tended simply to impeach the state's witness, and did not go to the merits of the case. The defendant excepted to the refusal to set aside the verdict and order a new trial and to the ruling on the motion.

William D. Veazey, Sol., and Erastus P. Jewell, for the State. Shannon & Tilton, for defendant.

PARSONS, C. J. "Evidence is any matter of fact the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact." Cook v. New Durham, 64 N. H. 419, 420, 13 Atl. 650. The defendant is charged with rape upon a woman child under the age of 16 years. The birth of the child conclusively established a prior act of intercourse. The fact was relevant upon the issue tried. The state could not be confined to proof by oral testimony and excluded from presenting the child to the jury as evidence tending to establish the fact of birth and prior unlawful intercourse. It was the right of the state to prove its case by competent evidence from all sources. Cook v. New Durham, supra. There was no error in exhibiting the child to the jury.

It is contended that error was committed in permitting counsel for the state to call attention to peculiarities in the features of the child and the defendant and to a general resemblance between them. The birth of the child, if found by the jury, established the commission by some one of the crime charged. If the defendant was the father of the child, his guilt was proved. Any evidence tending to establish that relationship was relevant. The issue was paternity, precisely as in a prosecution for bastardy. "The practice of bringing before the jury, on trials for bastardy, the child whose paternity is sought to be established, when living, has been almost universal in this state from the earliest recollection of the oldest practitioners." Gilmanton v. Ham, 38 N. H. 103, 112, 113. This practice, recognized by the court in 1859, has continued to the present time. State v. Saidell, 70 N. H. 174, 46 Atl. 1083, 85 Am. St. Rep. 627. In the latter case, decided in 1899, it was said: "The comparison of the child with the defendant as an individual, or with his race, was properly allowed;" and the ground upon which such comparison is permitted was placed upon the reasons advanced in Gilmanton v. Ham that "under the well-established physiological law that like begets like, and that generally there is a resemblance, more or less strong and striking, between the parent and his child, it was a fair matter of argument before the jury by the counsel on both sides whether or not there had been anything in the complexion, appearance, and features of the child which the witness had produced and identified before them tending to indicate its other parent." It is urged that the rule of this court, as recognized in Gilmanton v. Ham and State v. Saidell is erroneous, and against the weight of authority elsewhere. Time has therefore been taken to examine the authorities generally, although the rule, upon the cases referred to, appears firmly established in this jurisdiction.

In Andrews v. Askey, 8 C. & P. 7—an action for seduction—counsel relied in corroboration of the plaintiff upon the likeness of the child to the defendant. In Morris v. Davies, 3 C. & P. 214—an issue to determine whether the plaintiff was the son of William and Mary Morris—the defendants claimed the plaintiff was the fruit of an adulterous intimacy between Mary Morris and one Capt. Austin. "And the defendants' counsel much relied * * * on the circumstance of the personal resemblance that was proved by several witnesses to exist between him and the captain." 3 C. & P. 217. In the latter case in the House of Lords (5 C. & F. 163, 239) the same argument was made, reliance being had upon the oft-quoted observation of Lord Mansfield in the Douglas Case, "I have always considered likeness as an argument of a child's being the son of a parent." 1 Beck, Med. Jur. 651; Hub. Suc. 384. No suggestion appears to have been made that evidence of resemblance was not competent, and in that case it appears to have been regarded as evidence of a very convincing character. Camp. Ld. Ch., c. 144, ad fin., and note. When the fact of resemblance is satisfactorily established, Mr. Justice Heath is said to have told the jury in Day v. Day (Huntingdon Ass. 1797) "it was impossible to have stronger evidence." Hub. Suc. 384. It is also said that in 1871, in the Tichborne Case, Lord Chief Justice Cockburn held that the resemblance of the claimant to a daguerreotype of Roger Tichborne was relevant, and to have intimated that comparison of features between the claimant and sisters of Arthur Orton would be permitted. Gaunt v. State, 50 N. J. Law, 490, 493, 14 Atl. 600; Warlick v. White, 76 N. C. 175, 180; 8 Am. Law Rev. 381, 411, 412. Cases which hold that witnesses cannot be permitted to testify to the fact of resemblance generally concede that, if the fact be proved by the presence of the parties in court, or by photography, it is competent for the jury to consider the fact. Jessup's Estate, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594, 596; Shorten v. Judd, 56 Kan. 43, 45, 42 Pac. 337, 54 Am. St. Rep. 587, 589; Jones v. Jones, 45 Md. 144. It appears to be universally conceded that a resemblance between the parties, properly proved, is some evidence upon the issue. The cases upon which the defendant relies do not contest this proposition, and concede that even in the case of young children, if dissimilarity of race is involved, comparison in the presence of the jury is proper. Clark v. Bradstreet, 80 Me. 454, 15 Atl. 56, 6 Am. St. Rep. 221; State v. Saidell, 70 N. H. 174, 175, 176, 46 Atl. 1083, 85 Am. St. Rep. 627. The argument advanced in these cases is founded upon the alleged physiological fact, considered matter of, law as 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." Clark v. Bradstreet, 80 Me. 454, 15 Atl. 56, 6 Am. St. Rep. 221. In that case the child was six weeks old. In Hanawalt v. State, 64 Wis. 84, 24 N. W. 489, 54 Am. Rep. 588, the child exhibited to the Jury was less than a year old, and the court say of the fact of resemblance, "When applied to the immature child, its worthlessness as evidence to establish the fact of parentage is greatly enhanced, and is of too vague, uncertain, and fanciful a nature to be submitted to the jury." In the Indiana cases cited by the defendant the incompetency of the evidence furnished by the exhibition of the child is assumed. Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187; La Matt v. State, 128 Ind. 123, 27 N. E. 346. In Iowa, in State v. Harvey, 112 Iowa, 416, 84 N. W. 535, 52 L. R. A. 500, 84 Am. St. Rep. 350, it was held that a child nine months old could not properly be offered as evidence of its resemblance to the defendant. The same was held as to a child three months old in State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387, while in State v. Smith, 54 Iowa, 104, 6 N. W. 153, 37 Am. Rep. 192, it was held that a child two years and one month old might be shown the jury. All the cases concede, in effect, that there may be cases in which the maturity of the child or the character of the peculiarities relied upon as a ground of resemblance or dissimilarity render the child competent evidence on the issue of paternity. The objections urged to the competency of the evidence go rather to its weight than to its relevancy. When the comparison is made to determine a difference of race or otherwise, greater weight may properly be given to the evidence; but the ground of its relevancy is the same as when the comparison is between individuals. The objection resting upon the immaturity of the child is merely to the definiteness of the proof. If all individuals developed by a fixed rule, it might be possible to fix upon a certain age below which the child should not be exhibited as evidence on this issue. If there were such an age, its scientific determination would involve the finding of a question of fact upon physiological evidence—an investigation which this court has no means or power to make. Whether the features of a child are sufficiently developed to authorize its...