121 Ga. 491 | Ga. | 1904
Lead Opinion
Felix E. McCalman was indicted for the offense of bastardy. The indictment, so far as material here, was as follows: “For that the said Felix E. McCalman on the 23rd day of September, 1903, in the county aforesaid being the father of a bastard child horned to S. E. Chance, and upon a lawful warrant sued out in said case in said county before W. B. Chandler, a justice of the peace in and for said county, charging him, the said Felix E. McCaiman, with the offense of bastardy and upon the trial of said Warrant before said W. B. Chandler, justice of the peace in said ■county, and having been required in terms of the law by said W. B. Chandler, justice of the peace aforesaid, to give a bond with .good and sufficient security in the sum of seven hundred and fifty dollars, payable to S. J. Brown, ordinary of said county, to be used in the support, maintenance, and education of the child until it arrives at the age of fourteen years, and also the expense of lying in with said child, boarding, nursing, and maintenance while the mother is confined by reason thereof, did fail and refuse, contrary to the laws of said State, the good order, peace, and dignity thereof.” Sarah E. Chance, the mother of the child, was- the prosecutrix. The indictment was demurred to upon the following grounds: that it alleged no offense against the accused; did not allege when a bastard child was born to the prosecutrix; did not set out the age of the child, nor allegé whether it was over or under the age of fourteen years on September 23, 1903, or at the
Judgment reversed.
Concurrence Opinion
specially concurring. I concur in the judgment of reversal, but not in all the reasoning by which that conclusion is reached in the opinion delivered by the Presiding Justice. In my opinion, evidence that a bastard child resembles in appearance the person charged to be its father is admissible where the points of resemblance are pointed out, and should be submitted to the jury for what it is worth. Often it may be of little probative value; but that is a matter for the jury, and not the court. It is a circumstance; and I am at a loss to understand in what respect it differs from any other circumstantial evidence.' A man may have strongly marked physical characteristics, and the fact that a child of which he is alleged to be the father has those same characteristics may be very high evidence of his guilt of the charge of bastardy. At all events, courts can not say as a matter of law that it proves nothing. A jury has as much right to say whether a red-headed, blue-eyed, hook-nosed baby is the child of a man with those same features as it has to establish the identity of a man charged with murder by means of his physical characteristics. See 1 Gr. Ev. § 14 (S).