State v. . McDowell

7 S.E. 785, 101 N.C. 734

• Court: Supreme Court of North Carolina
• Decided: September 5, 1888
• Status: Published

Opinion

Davis, J.

(after stating the case.) The case presents two-questions for our consideration:

1. Can a married woman be the mother of a bastard child ?

2. If so, is the mother a competent witness to prove the facts and circumstances which tend to show that it could not. have been begotten by the husband ?

Both questions must be answered adversely to the defendant.

When a child is born in wedlock the law presumes it to-be legitimate, and unless born under such circumstances as to-show that the husband could not have begotten it, this presumption is conclusive; but the presumption may be rebutted by the facts and circumstances which show that tte husband could not have been the father, as that he was impotent or could not have had access. State v. Pettaway, 3 Hawks, 623; State v. Wilson, 10 Ired., 131; State v. Allison, Phil. Law, 346.

It was held in State v. Pettaway and State v. Wilson that, while the married woman was not a competent witness to prove impotencv or non access, she was a competent witness to prove the criminal intercourse of which the child was the offspring; and now, as she is not testifying “for or against” her husband, she is a competent witness under § 588 of The Code to testify in au.y “suit, action or proceeding,” except as stated in the said section, and there is nothing in § 1353 of The Code to exclude the testimony of the wife in a case like the present.

There is no error either in admitting evidence or in the charge of the Court.

Affirmed.