State v. Bowman

52 S.E.2d 345, 230 N.C. 203, 1949 N.C. LEXIS 587

• Court: Supreme Court of North Carolina
• Decided: March 30, 1949
• Status: Published

Opinion

EeviN, J.

When conception occurs during the marriage of its mother, a child is presumed to be the legitimate offspring of the then husband of the mother, notwithstanding it is born after the termination of the marriage. Rhyne v. Hoffman, 59 U.C. 335. The presumption of legitimacy arising in such case is not conclusive, but may be rebutted by evidence which proves that the husband could not have been the father because he was impotent or did not have access to the mother at the time the child was begotten. Ray v. Ray, 219 N.C. 217, 13 S.E. 2d 224; S. v. Green, 210 N.C. 162, 185 S.E. 670; Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, Ann. Cas. 1915 B, 373; S. v. Rose, 75 N.C. 239. The evidence of non-access, however, must come from third persons. This is true because under a well-established rule, which is said to be grounded on decency, morality and public policy, neither the husband nor the wife is competent to testify as to the nonaecess of the husband in a bastardy or other proceeding, where such testimony tends to bastardize or prove illegitimate a child of the wife either begotten or born during the existence of the marriage. Ray v. Ray, supra; S. v. Green, supra; West v. Redmond, 171 N.C. 742, 88 S.E. 341; Ewell v. Ewell, supra; Boykin v. Boykin, 70 N.C. 262, 16 Am. Rep. 776; Rhyne v. Hoffman, supra; S. v. Herman, 35 N.C. 502; S. v. Wilson, 32 N.C. 131; S. v. Pettaway, 10 N.C. 623. Hence, the court committed error in receiving the evidence of non-access given by the prosecutrix.

As this error requires the action to be tried anew, we refrain from any comment on the testimony, which was sufficient at the trial to overcome the motions for compulsory nonsuit.

New trial.