State v. Smith

• Decision Date: 17 June 1880
• Citation: 6 N.W. 153,54 Iowa 104
• Parties: THE STATE v. SMITH
• Court: Iowa Supreme Court

6 N.W. 153

54 Iowa 104

THE STATE v. SMITH

Supreme Court of Iowa, Des Moines

June 17, 1880

Appeal from Clayton District Court.

ACTION upon a complaint made by one Reka Helm against the defendant charging that she has been delivered of a bastard child which is living, and that the defendant is the father of it. Upon the trial the State offered to exhibit the child to the jury for the purpose of showing a resemblance between the child and the defendant. To such offer the defendant objected, but the objection was overruled, and the child exhibited. At the same time the counsel for the State proceeded to call the attention of the jury to what he claimed were points of resemblance between the child and the defendant. To this the defendant objected, but the objection was overruled, and the counsel for the State made a statement in these words: "I only wish to call the attention of the jury to what any one can see plainly with half an eye that the eyes of this exhibit (the child) are hooked, and that also the eyes of the defendant are hooked, and that the eyes of Reka Helm are not."

This statement was objected to by defendant, but the objection was overruled. There was a verdict against the defendant, and judgment was rendered thereon. He appeals.

AFFIRMED.

Murdock & Larkin, for the appellant.

Cyrus Wellington, for the State.

OPINION

ADAMS, CH. J.

I. The child in this case was two years and one month old. The defendant claims that any resemblance, if it should be shown to exist, between such a child and a man alleged to be its father is too unreliable to constitute legal evidence of the alleged paternity.

It is a well known fact that resemblances often exist between persons who are not related, and are wanting between persons who are. Still, what is called family resemblance is sometimes so marked as scarcely to admit of a mistake. We are of the opinion, therefore, that a child of the proper age may be exhibited to a jury as evidence of alleged paternity.

Precisely what should be deemed the proper age we need not determine. It was held in State v. Danforth, 48 Iowa 43, that it was error to allow a child three months old to be exhibited. That case is relied upon by the defendant in this. But a child which is only three months old has that peculiar immaturity of features which characterizes an infant during the time that it is called a babe. A child two years old or more has, to a large extent,...