State v. Pettaway
| Decision Date | 30 June 1825 |
| Citation | 10 N.C. 623 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. PETTAWAY. |
1. Under the act of 1741, ch. 30, a man may be charged with the maintenance of a bastard child begotten on the body of a married woman, upon proof of the nonaccess of her husband. The wife is not a competent witness to prove nonaccess; she may, however, from necessity, be examined to prove her criminal intercourse with another.
2. If by reason of imbecility, or on any personal account or by reason of absence from the place where the wife was, the husband cannot be the father of his wife's child, it shall be adjudged a bastard.
THE defendant was charged with being the father of a bastard child, begotten on the body of one Avy Perry, and pleaded thereto that he was not the father, and that Avy Perry was a married woman. The warlant for his apprehension issued 13 March, 1824.
On trial before Norwood, J., at EDGECOMIBE, the jury found a special verdict as follows: "That the defendant is the father of the child; that the husband of Avy Perry has not been absent seven years next before 13 March, 1824, but has been absent from the State of North Carolina six years ten months; that he was heard of in the State of Tennessee in 1820 and in the State of Georgia in 1821."
The presiding judge was of opinion that the law was in favor of the defendant on this finding, and ordered the proceedings to be dismissed, whereupon the Attorney-General for the State appealed.
There are two objections made by the defendant to his being charged with the maintenance of the child sworn against him. The first is that the mother is a married woman and that the power of the justices and the county court is confined by theexpress terms of Laws 1741, ch. 30, sec. 10, to the case of a single woman being pregnant or delivered. The other is that the access of the husband shall be presumed, unless he was beyond sea so long a period before and during gestation as to render it impossible that he should have been the father.
It will appear from an accurate examination of the law that the first objection is untenable; for although it uses the expression, "single woman," in the part of the section making provision where the woman refuses to declare the father, yet in the subsequent part of the same section it proceeds: "But in case such woman shall, upon oath, before the said justices, accuse any man of being the farther of a bastard child," etc., expressions which comprehend every woman, married and single, who shall have a child born under such circumstances that the law would adjudge it to be a bastard. If a married woman have a child born by an adulterous intercourse, in violation of the rights of matrimony, the nuptial state of the woman does not prevent the law from pronouncing the child a bastard. The mother...
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Ingalls Shipbuilding Corporation v. Neuman, Civ. A. No. 3833.
...to infer whether intercourse did or did not take place. Banbury v. Gardner, Peerage cases; Rex v. Luffe, 8 East 173; State v. Petteway Pettaway, 10 N.C. 623, 3 Hawks 623 1 Phil.Evi., 630. * * "The rule announced in Wharton's Criminal Evidence, 11th Edition, Vol. 1, Section 101, page 119, is......
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Biggs v. Biggs
...C. Evidence, § 61, p. 107. In early North Carolina decisions the rule was recognized and applied. Boykin v. Boykin, 70 N.C. 262; State v. Pettaway, 10 N.C. 623. Later the court apparently considered that the rule had been abrogated by statute (G.S. § 8-56). State v. McDowell, 101 N.C. 734, ......
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State v. Bowman
... ... * * * [ But] she is permitted to testify as to the ... illicit relations in actions directly involving the parentage ... [55 S.E.2d 791.] ... of the child, for in such cases, proof thereof frequently ... would be an impossibility except through [her ... testimony]', citing State v. Pettaway, 10 N.C ... 623; State v. Wilson, 32 N.C. 131; State v ... McDowell, 101 N.C. 734, 7 S.E. 785 ... Indeed, ... the rulings to which these assignments of error relate are ... not in conflict with the rule of evidence applied in granting ... a new trial on former appeal, 230 ... ...