State v. Bowles., 52 N.C. 579, 7 Jones 579 (1860)

Aug. 1860 · Supreme Court of North Carolina

52 N.C. 579, 7 Jones 579

STATE v. BENJAMIN BOWLES.

’On an issue made up to try the paternity of a bastard child, the defendant has a right to show that the child does not resemble him.

This was an issue of bastardy, tried before Osborne, J., at the last Superior Court of Alexander county.

The counsel for the State introduced the examination of one Elizabeth Wilson, a single woman, wherein the defendant is ■charged with being the father of her bastard child.

To rebut the presumption, arising from this testimony, the ■defendant, amongst other things, proposed to show that the child, in question, did not resemble him, but strongly resembled another man in the neighborhood. This testimony was rejected by his Honor, and the defendant excepted.

Verdict for the State. Judgment and appeal by the defendant.

Attorney General, for the State.

No council appeared in Court for the defendant.

Manly, J.

Upon one of the points made on the trial be* low, we think the defendant entitled to a venire de novo. The evidence to show a want of resemblance between the child and the alleged father, was fit and proper, upon the question of paternity, and, therefore, ought to have been admitted.

To rebut the presumptive case, raised under the statute, by the oath of the woman, resort must be had in most cases, by the defendant, to inferential proofs, and to these alone; for, from tbe nature of the negation to be maintained by him, none other, except in rare instances, is within his reach. And in this field of evidence any fact is pertinent, and may be put on proof, provided, a natural inference may be drawn from it, bearing upon the issue between the parties, of some appreciable weight.

There are marked distinctions, physical and external, between the races of mankind, (as between the Caucasian and African, the Saxon and Milesian,) and there are, also, distinctive characteristics pertaining to different families of the same race, which, when noted in detail, will enable men of observation to infer whether an individual belong to one or the other.

If the points of similarity or dissimilarity be not, of themselves, sufficient, they will be entitled, at least, to some weight, in connection with other facts, in deciding the matter. That the young will resemble their progenitors, more or less, is an assumption universally acted upon by mankind, and is doubtless founded upon a general experience of its truth. It seems to be an established theory in the physiology of our race, and evidence, we think, may be safely predicated npon a proposi-f tion of common or universal acceptance.

Of course the force of the evidence will depend npon the number of the points of dissimilarity, and upon their nature ^ and kind, and will be of greater or less weight accordingly.

We think, therefore, it was the right of the defendant to show that, in certain respects, the child did not resemble him, and to have this considered by the jury for what it was worth, in connection with the other evidence. Venire de novo.

Per Curiam,

Judgment reversed.