State v. . Green

185 S.E. 670, 210 N.C. 162, 1936 N.C. LEXIS 43

• Court: Supreme Court of North Carolina
• Decided: May 20, 1936
• Status: Published

Opinion

Devin, J.

Though the record shows one hundred and ninety-six assignments of error in the trial below, only one determinative question is presented for decision.

When a child is born in wedlock, the husband and wife living in the same house, is legitimacy conclusively presumed?

Upon authority and reason, the question must be answered in the affirmative.

The ancient rule of the common law that if the husband was within the four seas no proof of nonaccess was admissible (S. v. Pettaway, 10 N. C., 623) has been modified in this State only to the extent that the presumption of legitimacy may be rebutted by evidence tending to show the husband could not have had access or was impotent. S. v. McDowell, 101 N. C., 734; I Wharton Criminal Evidence, 119.

Illegitimacy is an issue of fact resting upon proof of the impotency or nonaccess of the husband. S. v. Liles, 134 N. C., 735.

In Woodward v. Blue, 107 N. C., 407, Clark, C. J., quotes the following : “If a husband have access, and others at the same time are carrying on a criminal intimacy with his wife, a child born under such circumstances is legitimate in the eye of the lawthough a different rule would apply “if husband and wife were living separate and the wife is notoriously living in open adultery.” 10 L. R. A., 662.

In Ewell v. Ewell, 163 N. C., 233, it is said: “Nothing is allowed to impugn the legitimacy of a child short of proof by facts showing it to be impossible that the husband could have been its father.”

Here it is uncontroverted that the husband and wife were living under the same roof during the period when the child Johnsie was begotten; that they continued to live together for more than two years thereafter, during which time there was born another child of which defendant admits he was the father. The law will not permit defendant now to assert the illegitimacy of the child Johnsie by the proffered evidence of nonaccess. The legitimacy is conclusively presumed.

It follows, therefore, that the evidence of the defendant on this point was incompetent, as was also other evidence tending to establish illegitimacy of the child under these circumstances.

We have examined the other exceptions which the diligence of counsel has presented for our consideration, and decide that none of them can be sustained. The judge’s charge to the jury was in accord with the principles laid down in the decided cases.

In the trial we find

No error.