State v. Herman

• Decision Date: 31 August 1852
• Citation: 35 N.C. 502,13 Ired. 502
• Court: North Carolina Supreme Court
• Parties: STATE v. GEORGE HERMAN.

13 Ired. 502

35 N.C. 502

STATE

v.GEORGE HERMAN.

Supreme Court of North Carolina.

August Term, 1852.

A child born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law, and where the mother was visibly pregnant at the marriage, it is a presumption juris et de jure, that the child was the offspring of the husband.

Where the examining Justices do not find, whether a child, alleged to be a bastard, was born in wedlock or not, that being a question before them, nor find whether, if born in wedlock, the facts existed which would still render it a bastard, as non access or impotency of the man, who was married to the woman, at the time when she had the child; there is sufficient ground for quashing the proceedings.

So, also, if they pass upon these facts, or the testimony of the mother alone, for as to them she is an incompetent witness.

The case of the State v. Wilson, 10 Ire. 131, cited and approved.

Appeal from the Superior Court of Law of Alexander County, at the Fall Term, 1851, his Honor Judge MANLY presiding.

Attorney General for the State .

W. P. Caldwell for the defendant .

RUFFIN, C. J.

The defendant was charged, as the father of a bastard child of Polly Payne. The warrant does not state, whether she was a single or married woman, but in her examination she swore, that she had been delivered of a bastard child, and that the defendant was the father of the child, and further, that, at the time the child was begotten, she was a single woman, but that she has since married one Robert Payne--without stating whether the child was born before or after her marriage. Two Justices upon the examination of the woman bound the defendant to the County Court, and there he moved to quash the warrant and orders thereon, upon the ground, that the child was not a bastard, but was born in wedlock and legitimate. In support of the motion the defendant gave evidence, that the child was born in May, five months and two days after the marriage of the mother to Robert Payne, and that, for more than twelve months preceeding their marriage, the said Robert Payne and Polly resided in the same county in this State, and that, “in the fall” before the marriage, the said Robert and Polly staid all night at the same house. The Court, therefore, allowed the motion, and the attorney for the State appealed. In the Superior Court, the order on the same state of facts was reversed, and the defendant appealed to this court. The Court is of opinion, that the order ought to have been quashed. A child, born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law. Co. Lit. 244, a. And where a child is born during wedlock, of which the mother was visibly pregnant at the marriage, it is a presumption juris et de jure, that it was the offspring of the husband. 1 Phil. Ev. 463. Best on Presumption, 70. In Rex v. Luff, 8 East....