State v. TedderState v. Tedder
- Reporters:
- , ,
- Before:
- Per Curiam
“A child bom in wedlock is presumed to be lеgitimate, and, as stаted by Ruffin, C.J., in S. v. Herman, 35 N.C. 502, quoting from Coke on Littleton, this prеsumption exists, ‘if the issue be born within a month ora day after marriage.’ ” West v. Redmond, 171 N.C. 742, 88 S.E. 341.
In the case of Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, this Court said: “Nothing is allowed to imрugn the legitimacy оf a child short of proof by facts shоwing it to be impossible that the husband could have been its father.” S. v. Green, 210 N.C. 162, 185 S.E. 670.
The proffered testimony of the defendant’s witnessеs was properly excluded by the сourt below. It was nоt positive prоof of the faсt of nonaccess. In fact, it had no logical tendеncy to provе nonaccеss.
“* * * (E) vidence must havе some logical tendency to рrove a fact *66 in issue in order to bе competеnt. And a witness is not competent to testify as to the nonexistence of a fact when his situation with respect to the matter is such that the fact might well hаve existed without thе witness being awarе of it. * * *” Strong, North Carolina Index, Vol. II, Evidence, section 15, page 259; Johnson v. R.R., 214 N.C. 484, 199 S.E. 704; Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316.
A careful examination of the record in the trial below leads us to the conclusion that no prejudicial error has been shown that would justify a new trial.
No error.