State v. Harvey

• Decision Date: 19 December 1900
• Citation: 84 N.W. 535,112 Iowa 416
• Parties: THE STATE OF IOWA v. C. E. HARVEY, Appellant
• Court: Iowa Supreme Court

84 N.W. 535

112 Iowa 416

THE STATE OF IOWA v. C. E. HARVEY, Appellant

Supreme Court of Iowa, Des Moines

December 19, 1900

Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.

BASTARDY proceedings. The defendant appeals from judgment entered on a verdict of guilty.

Reversed.

R. B Parrott and L. Kinkead for appellant.

Brennan & Brennan for appellee.

OPINION

LADD J.

It is enough now to say that the evidence was such as to leave the question of defendant's guilt of begetting complainant's child, then 9 months old, at the least doubtful. Her story implicating him, appears not very probable, and her admission of having had intercourse with Waller a year previous to its conception, and sleeping alone in a room accessible to the latter continually up to that time, indicates, notwithstanding her denial of repetition the possibility of its having been his offspring. So that the introduction of the immature child in evidence "for the jury to look at; * * * to examine as to the identity and resemblance between the baby and putative father"--as stated by counsel for the state--may well have played an important part in settling the controversy. The color of its eyes and hair, its complexion, the contour of the brows and shape of hands, any or all of which may have related back three or four generations, doubtless were given weight in making this comparison. What they were we have no means of knowing, nor does this record disclose in what respects these differed from or resembled the hair, eyes complexion, brows, or hands of defendant, or of Waller. Thus, the jury based their verdict in part at least, on their individual knowledge of facts, or opinions resting on facts, of which this court, on appeal, can acquire no information, making of themselves "silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunity for cross-examination or correction of errors, if any, could be afforded either party." See Close v. Samm, 27 Iowa 503; Washburn v. Railway Co., 59 Wis. 364 (18 N.W. 328). In such a case might a new trial ever be ordered because of the insufficiency of evidence? Nevertheless this court in State v. Smith, 54 Iowa 104, 6 N.W. 153, held that a child 2 years and 1 month old might be exhibited to the jury, though to exhibit one of 3 months had been adjudged an error in State v. Danforth, 48 Iowa 43. While conceding that "resemblances often exist between persons who are not related, and are wanting between persons who are," the ruling seems to rest on the proposition that "what are called 'family resemblance' are sometimes so marked as scarcely to admit of a mistake." With respect to proper age, it was said that "a child which is only 3 months old has that peculiar immaturity of features which characterizes an infant during the time that it is called a 'babe.' A child 2 years old or more has, to a large extent, put off that peculiar immaturity." If this is to be the criterion, then, surely, a child of 9 months is too immature to afford aid to the jury in settling its paternity. True, resemblances then are frequently imagined. But what one will construe as a similarity, another, with the same knowledge of the parties between whom the comparison is made, will be unable to detect. If alike in some respects, they differ in others. It is all a matter of notion, fancy, or guesswork, and ought to be given the slightest weight in determining an issue fraught with such grave consequences. In People v. Carney, 29 Hun 47, the court, observing that children of the same family have eyes and hair of different colors, declared that it is "a dangerous doctrine to permit a...