Warlick v. White

Citation76 N.C. 175
CourtUnited States State Supreme Court of North Carolina
Decision Date31 January 1877
PartiesF. T WARLICK v. PETER WHITE and wife, and others.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried at Fall Term, 1876, of CATAWBA Superior Court, before Buxton, J.

The case substantially states the following: F. T. Warlick the beneficial plaintiff claimed title to an undivided half of a tract of land which formerly belonged to Joseph Carpenter, deceased. Plaintiff claimed as assignee of Mrs. Catharine Eaton, the sister and only heir-at-law of said Carpenter. The defendant's wife, Naomi White, before her marriage to said White, was the widow of said Carpenter and claimed title to an undivided half of said land under the will of her former husband. The defendant and his wife were in possession of the whole tract, Naomi claiming one-half in her own right and the other in right of her daughter Sarah J. Carpenter, who it was alleged was the sole heir of said Joseph Carpenter. Sarah was born shortly after the death of said Joseph, her father, and is a minor and one of the defendants in this action. Her legitimacy was a matter of controversy between the parties. Upon this point the decision of this Court is based, and the opinion delivered by Mr. Justice Rodman contains a sufficient statement of the facts.

Under the instructions of His Honor in the Court below the jury found the said Sarah was the child of Joseph Carpenter. Verdict for defendants and judgment in accordance therewith. Appeal by plaintiff.

Messrs. J. F. Hoke and M. L. McCorkle, for plaintiff .

Messrs. Folk & Armfield, for defendant .

RODMAN, J.

1. The plaintiff having introduced evidence tending to prove that Sarah, one of the defendants was illegitimate and not the heir of Joseph Carpenter, the defendant, Naomi, the mother of Sarah, was allowed to testify that she had been faithful to the said Joseph during his life and that no person but him could have been the father of the child. To this evidence the plaintiff excepted. As the disqualification of interest does not now exist, we see no ground for the exception. It would be hard upon the defendant Naomi, if her evidence could not be heard on such a point.

2. By way of impeaching the evidence of the defendant Naomi, the plaintiff offered a witness to prove her general character. The defendant objected to the witness being allowed to speak of any reports growing out of the matter in controversy. The plaintiff then proposed to ask the witness “what was the general character of Naomi White in 1864 and 1865,” (July, 1865, was the date of the birth of the child Sarah, whose legitimacy was in dispute.) The Judge excluded the question in the form proposed, but allowed the plaintiff to inquire into the general character of Naomi previous to the birth of the child and as to her character since that time, except as it might be affected by that event. The plaintiff excepted.

It does not appear from the question, whether it was intended to apply to her character for truth or for chastity. In its form it covers both. As Naomi was a witness, we think her general character for truth might be inquired into, as of the time when she testified. If the witness should say that her reputation was bad in that respect at the time of her testifying, it would be open to the defendants to prove by cross-examination or otherwise that her reputation had been made bad by reason of the charges made by the plaintiff, or by Lawson Carpenter or others, respecting the legitimacy of the child and that it was good before. If that appeared, it is reasonable to suppose that the evidence would have no weight with the jury because it would tend to establish the fact in controversy (the illegitimacy of the child) by a reputation based on the presumption of such illegitimacy. We cannot say however that the general reputation of the witness for truth at the time of her testifying could be excluded. It would be for the jury to say what weight it should have under all the circumstances. A different rule would apply as to the reputation of the defendant Naomi for chastity. It is clear that a reputation for want of chastity, acquired (if such was acquired at all) after the death of Joseph Carpenter, would not be competent upon the question of the legitimacy of her child begotten during his life time. And although it is not so clear we think that such a reputation existing during his life time, would not be competent for the purpose of disproving legitimacy.

When the husband had access, the presumption of paternity is very strong, though not absolutely conclusive. It can only be met by proof that it was impossible that he could have been the father of the child, as in this case it is attempted to be, by proof of the color of the child. As the question covered the whole general character, or more properly general reputation of the witness, we think it was properly refused. The character of Naomi was in issue only by reason of her being a witness. There was nothing in the nature of the action to put her character in issue otherwise.

3. Joseph Carpenter and his wife, the defendant, Naomi were whites.

The plaintiff alleged and gave evidence tending to prove that the defendant Sarah was of mixed blood and therefore could not be the child of said Joseph. She was examined by experts who testified on the trial and differed in their opinions. The plaintiff then proposed to exhibit the said Sarah to the jury, for the purpose of aiding them by her appearance, in deciding whether she was of mixed blood or not. The plaintiff did not propose otherwise to examine her as a witness. The defendants objected and the Judge sustained the objection and refused to order the said Sarah to be placed on the witness stand, for the purpose proposed. The plaintiff excepted.

We think that the plaintiff was entitled to exhibit Sarah to the jury in the manner proposed. It is said that such an exhibition to be useful, must be such as would be indelicate and even indecent. Mr. Folk produced from Coke an instance where a woman, whose then pregnancy was in issue, was permitted by an inferior Court to expose herself to the jury and the Superior Court justly condemned it as indecent. We need not fear...

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  • State v. Zihlavsky, 18459-KA
    • United States
    • Court of Appeal of Louisiana (US)
    • 1 Abril 1987
    ...al. v. State, 22 Ala.App. 469, 116 So. 893, 895; People v. Goldenson, 76 Cal. 328, 19 P. 161, 169; Garvin v. State, 52 Miss. 207; Warlick v. White, 76 N.C. 175; Clark v. Bradstreet, 80 Me. 454, 15 A. 56, 57, 6 Am.St.Rep. 221; State v. Gebhardt, 219 Mo. 708, 119 S.W. 350, 352; State v. Davis......
  • United States v. Hung Chang
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 1 Diciembre 1904
    ...by other testimony than profert of the party that he was 'a person,' 'a man,' if so described in the indictment. ' See, also, Warlick v. White, 76 N.C. 175, 179. In case of Ark Foo v. U.S., 128 F. 697, 63 C.C.A. 249, Ark Foo claimed he was born in the United States. A witness testified that......
  • Green v. Commonwealth ex rel. Helms
    • United States
    • Court of Appeals of Kentucky
    • 26 Mayo 1944
    ...not it is of the race or color which would characterize the offspring of its mother and putative father. 7 Am.Jur. § 36, p. 651; Warlick v. White, 76 N.C. 175; Miller State, 103 Neb. 591, 173 N.W. 577. See annotations 31 A.L.R. 1119; 40 A.L.R. 130 and 95 A.L.R. 316, where many authorities m......
  • Green v. Commonwealth ex rel. Helms
    • United States
    • United States State Supreme Court (Kentucky)
    • 26 Mayo 1944
    ...it is of the race or color which would characterize the offspring of its mother and putative father. 7 Am. Jur. sec. 36, p. 651; Warlick v. White, 76 N.C. 175; Miller v. State, 103 Neb. 591, 173 N.W. See annotations 31 A.L.R. 1119; 40 A.L.R. 130 and 95 A.L.R. 316, where many authorities may......
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