State v. Wilson

Decision Date31 August 1849
Citation10 Ired. 131,32 N.C. 131
CourtNorth Carolina Supreme Court

Upon the trial of an issue in a bastardy case, whether or not the defendant is the father of the child charged to him, it is not competent to introduce any testimony to shew, that the child was not a bastard.

The adjudication of that question belongs to the justices, before whom the oath of the woman is made, and if they decide against him upon that question, he has a right to bring it up by certiorari.

The case of the State v. Barrow, 3 Murp. 121, cited and approved.

Appeal from the Superior Court of Law of Catawba County, at the Fall Term 1847, his Honor Judge PEARSON presiding.

This is a proceeding in bastardy, in which the defendant was charged as the father of a child of Mary Huffman. At his instance an issue was made up, whether the defendant was the father of the said bastard child, or not.

On the trial, the examination of the mother was given in evidence on the part of the State, and therein she charged the defendant to be the father.

On the other side, evidence was then given, that the said Mary and one Lawson Huffman intermarried in 1840, and lived together in Catawba County for some months, and that, then, the husband left his wife and went to one of the western States; that about the 1st of October 1843 he returned to Catawba and resided there in the vicinity of his wife, and frequently slept in the same house with her, until March 1814; but not in the same bed, except that, on one occasion, the particular period not mentioned, he rose in the night from the bed in which he was lying and went to that in which his wife was: That in March 1844, the said Lawson again left the State, and had not been since heard of; and the said Mary remained in Catawba and had the child there on the 19th of July, 1844.

The counsel for the defendant moved the Court to instruct the jury, that upon this evidence, if believed, the child was deemed in law the husband's; and, therefore, that the defendant could not be found to be the father.

But the Court refused the instruction; and then informed the jury, that, although there was such a legal presumption as that mentioned, when the husband and wife had opportunity of intercourse, yet it could not determine the issue-- which was, whether the defendant was or was not in fact the father--because, as to that, the law raised also a contrary presumption from the examination of the mother; and that, therefore, the question was to be determined on those opposing presumptions and any other evidence, upon the matter of fact; and that they ought to find against the defendant, if upon the whole evidence they believed, that he was the father of the child.

The issue was found against the defendant, and he appealed.

Attorney General, for the State.

No counsel for the defendant .


It is probably true, that, upon the evidence of access in this case, the law would presume conclusively, that the issue is legitimate. And it is certain, the oath of the wife, by itself, was not sufficient, at common law, to bastardize her issue, so as to exonerate her husband from its maintenance and charge another person with it; and we suppose that the Act of 1814 has not made any change in that respect. But it seems to the Court, that those questions could not be raised in the manner and in the stage of the case, in which they were here brought forward. If they could, we are not prepared to say the question of paternity was not left to the jury properly, under the statute, upon the contrariant legal presumptions, aided on the one side or the other by other circumstances.

But we need not consider that point, as the Court hold, that, on the trial of this issue, no part of the defendant's evidence ought to have been heard, for the reason, that it was irrelevant, and, indeed, contradictory to the admission or implication in the issue, that the child was a bastard. That, we think, will be apparent upon considering the difference between the several questions thus presented, the state of the law before the act of 1814, and the alterations introduced by it.

When it was held, notwitstanding the statutes spoke only of single women, that the true question under them was, whether the child, sought to be affiliated, was a bastard, and therefore that a man might be charged, as the father of a married woman's child, the necessary consequence was, that he could be so charged, only when such circumstances were found upon competent evidence, as to constitute the child a bastard in law: since every married woman's child is prima facie the issue of the husband. Hence the mother appearing in the proceedings to be married, it was requisite the conviction should state the impotency or non access of the husband, and that it was proved otherwise than by the wife; as she was only competent, and that, from necessity, to prove the criminal conversation, of which the child was the fruit. Of course, it would be open to the accused, before the Justices, to offer evidence of access or opportunity of access of the husband, and thereby seek to establish the legitimacy of the child; and it would be for the Justices, upon the whole evidence and according to its legal weight, to determine, whether the child was legitimate or a bastard. If the former was found, as established by the proofs, the party accused was to be at once discharged; and if the latter, the party was conclusively fixed as the father?? In the first case, the party was necessarily discharged, although the Justices might believe, upon the oath of the mother, that he was in fact the father; for the reason, that, nevertheless, the child could not legally be adjudged a bastard. It is, thus manifest, that, the first enquiry in such cases is, whether the child be a bastard, or not. That is preliminary to and altogether distinct from the enquiry, who, supposing the child to be a bastard, is the father? Now, it was at all times the course for the Superior Courts in England to re-examine, upon certiorari, orders of bastardy in such cases, and to quash them, when impotency or non??access of the husband did not appear in them to have been established upon evidence, which was not apparently incompetent. It was a settled jurisdiction at common law. Rex v. Reading, Rep. Temp. Hardw. 19. Rex v. Rooke, 1 Wils. 340. Rex v. Luffe, 8 East. 193....

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11 cases
  • State v. Liles
    • United States
    • North Carolina Supreme Court
    • April 19, 1904
    ... ... 768, 13 S.E. 8; State v. Allison, 61 N.C. 346 ... Here it affirmatively appears that the woman was married both ... when she made the affidavit and when the child was born. But ... it was held by Taylor, C.J., in State v. Pettaway, ... 10 N.C. 623, and by Ruffin, C.J., in State v ... Wilson, 32 N.C. 131, cited with approval in State v ... Allison, 61 N.C. 346, that, though the statute specifies ... "any single woman big with child or delivered of a ... child," the subsequent language in the section that the ... object is to protect the public against the charge of ... ...
  • Wallace v. Wallace
    • United States
    • Iowa Supreme Court
    • January 15, 1908
    ...1856 (Anon v. Anon, 23 Beav. 273), and it has been approved by the consensus of judicial opinion since. Estate of Mills, supra; State v. Wilson, 32 N. C. 131;Tioga County v. South Creek Tp., 75 Pa. 433;Parker v. Way, 15 N. H. 45. Some question is raised as to whether the rule should be appl......
  • Wallace v. Wallace
    • United States
    • Iowa Supreme Court
    • January 15, 1908
    ... ... of sexual intercourse between a single man and an unmarried ... woman is not a crime at common law, or under any statute of ... this State. The fault of the complainant in sinning against ... the moral law does not entitle him to be deceived and ... defrauded in this manner. Acting ... the presumption of legitimacy arising from postnuptial birth ... Dennison v. Page, 29 Pa. 420 (72 Am. Dec. 644); ... Wilson v. Babb, 18 S.C. 59; Zachmann v ... Zachmann, 201 Ill. 380 (66 N.E. 256, 94 Am. St. Rep ... 180); 8 Ency. of Evidence, 166. And, when there has ... ...
  • State v. Bowman
    • United States
    • North Carolina Supreme Court
    • November 2, 1949
    ...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 McDowell, 101 N.C. 734, 7 S.E. 785. Indeed, the rulings to which these assignments of error relate are not in conflict with t......
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