60 A. 839 | N.H. | 1905
"Evidence is any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact." Cook v. New Durham,
It is contended that error was committed in permitting counsel for the state to call attention to peculiarities in the features of the child and the defendant and to a general resemblance between *217 them. The birth of the child, if found by the jury, established the commission by some one of the crime charged. If the defendant was the father of the child, his guilt was proved. Any evidence tending to establish that relationship was relevant. The issue was paternity, precisely as in a prosecution for bastardy.
"The practice of bringing before the jury, on trials for bastardy, the child whose paternity is sought to be established, when living, has been almost universal in this state from the earliest recollection of the oldest practitioners." Gilmanton v. Ham,
It is urged that the rule of this court, as recognized in Gilmanton v. Ham and State v. Saidell, is erroneous and against the weight of authority elsewhere. Time has therefore been taken to examine the authorities generally, although the rule, upon the cases referred to, appears firmly established in this jurisdiction.
In Andrews v. Askey, 8 C. P. 7, an action for seduction, counsel relied in corroboration of the plaintiff upon the likeness of the child to the defendant. In Morris v. Davies, 3 C. P. 215, an issue to determine whether the plaintiff was the son of William and Mary Morris, the defendants claimed the plaintiff was the fruit of an adulterous intimacy between Mary Morris and one Captain Austin. "And the defendants' counsel much relied . . . on the circumstance of the personal resemblance that was proved by several witnesses to exist between him and the captain." 3 C.
P. 217. In the latter case, in the house of lords (5 C. F. 163, 239) the same argument was made, reliance being had upon the oft-quoted observation of Lord Mansfield in the Douglas case: "I have always considered likeness as an argument of a child's being the son of a parent." 1 Beck. Med. Jur. 651; Hub. Suc. *384. No suggestion appears to have been made that evidence of resemblance was not competent, and in that case it appears to have been regarded as evidence of a very convincing *218
character. Camp. Ld. Ch., e. 144, ad fin., and note. When the fact of resemblance is satisfactorily established, Mr. Justice Heath is said to have told the jury in Day v. Day (Huntingdon Ass. 1797) "it was impossible to have stronger evidence." Hub. Suc. *384. It is also said that in 1871, in the Tichborne case, Lord Chief Justice Cockburn held that the resemblance of the claimant to a daguerreotype of Roger Tichborne was relevant and intimated that comparison of features between the claimant and sisters of Arthur Orton would be permitted. Gaunt v. State,
It appears to be universally conceded that a resemblance between the parties, properly proved, is some evidence upon the issue. The cases upon which the defendant relies do not contest this proposition, and concede that even in the case of young children, if dissimilarity of race is involved, comparison in the presence of the jury is proper. Clark v. Bradstreet,
All the authorities concede, in effect, that there may be cases in which the maturity of the child, or the character of the peculiarities relied upon as a ground of resemblance or dissimilarity, render the child competent evidence on the issue of paternity. The objections urged to the competency of the evidence go rather to its weight than to its relevancy. When comparison is made to determine a difference of race or otherwise, greater weight may properly be given to the evidence; but the ground of its relevancy is the same as when the comparison is between individuals. The objection resting upon the immaturity of the child is merely to the definiteness of the proof. If all individuals developed by a fixed rule, it might be possible to fix upon a certain age below which the child should not be exhibited as evidence on this issue. there were such an age, its scientific determination would involve the finding of a question of fact upon physiological evidence — an investigation which this court has no means or power to make. Whether the features of a child are sufficiently developed to authorize its use as evidence by comparison with the alleged parent, is purely a question of fact. A court of law cannot determine this question of fact, as a rule of law, without evidence, upon their personal impressions, without basing their judgment upon a "vague, uncertain, and fanciful" foundation. Conceding that resemblance properly proved is an evidentiary fact competent for consideration in connection with other evidence upon the issue of paternity, and that in certain instances or situations the individuals themselves may furnish evidence of such resemblance, the question whether the evidence offered by one of the individuals — the child — is sufficiently definite to have weight on the question in a particular case is a question of remoteness determinable at the trial term. Pritehard v. Austin,
No error of law was committed at the trial. Whether the rejection of such proof of resemblance upon the ground of immaturity of features in the child, found as a fact by the trial court, would constitute error of law in this jurisdiction, is a question not presented. It is said in a recent work that "the sound rule is to admit the fact of similarity of specific traits, however presented, provided the child is in the opinion of the trial court old enough to possess settled features or other corporal indications." 1 Wig. Ev., s. 166. This rule appears reasonable, avoiding the strongest objections raised to this class of evidence, and to be in accord with the general practice here as to evidence of such varying character. Whether it should be here followed, is a question which the present case does not raise for decision. *220
United States v. Collins, 1 Cranch C.C. 592, cited by the defendant, is the report of a jury trial in which the presiding judge refused to admit the testimony of witnesses to prove the likeness between the defendant and the child. The grounds of the exclusion are not stated. In State v. Neel,
The cases on the subject are quite fully collected in Wigmore on Evidence (vol. 1, s. 166) and in a note to State v. Harvey, 52 L. R.A. 500; and the conclusion of the authors, that the weight of authority coincides with the rule of this court, appears to be sustained by an examination of the cases. Finnegan v. Dugan, 14 Allen 197; Scott v. Donovan,
The general rules as to the admissibility of evidence are the same in criminal as in civil proceedings. Gaunt v. State, above cited, was an indictment for fornication, in which the question is fully considered. The objection that the defendant was compelled to furnish evidence against himself is without foundation. It does not appear that he was required to do anything. As it does not appear that he did not testify, it is to be presumed he exercised his right and offered himself as a witness before the jury, and made himself a subject of cross-examination and comment. State v. Ober,
If the counsel for the state kissed the child in the presence of the jury, a charge which counsel denies and which is not found to be true, such act had no tendency to prove that the defendant was the father of the child, — the point in controversy, — or that counsel thought so. As evidence, the act was clearly immaterial. Being immaterial, the verdict cannot be affected by the bad taste of such an exhibition unless the spectacle tended clearly to prejudice the jury against the defendant. If what the jury saw tended to create in their minds sympathy for the child, it is not clear how *221
the result of sympathy so evoked could prejudice them against, the defendant in this proceeding, however the fact might be in a proceeding for bastardy. It could not aid the child to convict the father of rape. A verdict is not set aside for the admission of incompetent, immaterial evidence not calculated to prejudice the losing party. Smith v. Morrill,
Whether justice requires that a new trial should be had upon the ground of newly discovered evidence, is a question of fact for the trial court. Ela v. Ela,
Exceptions overruled.
All concurred. *222