Sampson County NcArchives Court.....Jasper Warren, State & Luvida Cannon V. 1899
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 12, 2011, 5:30 pm

Source: N C Reports
Written: 1899

State & Luvida Cannon v. Jasper Warren

(Decided March 21, 1899)

Bastardy Proceeding - Evidence

On the trial of an issue of paternity, whatever tends to prove or to disprove 
the affirmative of the issue is competent evidence for the jury. Where the 
defendant offers to prove that another man had intercourse with the 
prosecutrix at the time when by the course of nature the child must have been 
begotten, this evidence bears directly upon the issue and ought to be admitted.

Issue of Paternity, in a bastardy proceeding, tried before Robinson, J., at 
October Term, 1898, of Sampson Superior Court.

The prosecutrix testified that the defendant was the father of her child, 
which was born June 2, 1898, and that it was begotten about August 11, 1897; 
that she never had connection with any other man that Zilla Blackman, the 
father of a former child, now dead - and the defendant.

Warren, the defendant, testified that he had connection with prosecutrix about 
July 1 and October 15, 1897 but never during the months of August and 
September, 1897. On his cross examination he admitted he had connection with 
her as many as twelve times.

The defendant offered Lovett Baggett as a witness and asked him, if he, 
Baggett, had connection with prosecutrix on or about August 22, 1897, and 
frequently during the months of August and September, 1897. State objected; 
objection sustained, defendant excepted.

Martin Gainey, witness for defendant testified, that in the fall of 1897 the 
prosecutrix told him that Lovett Baggett was the father of her child.

The defendant then insisted that he was entitled to prove by Lovett Baggett 
his acts of intercourse with the prosecutrix, just previously ruled out, in 
corroboration of the witness Gainey. His Honor declined to permit this and 
defendant excepted.

Verdict of guilty. Judgment and appeal.

F. R. Cooper for defendant
Zeb. V. Walser, Attornery General, for the State

NC Supreme Court Justice Furches, J. - This is a proceeding in bastardy 
involving the paternity of the child. The mother testified that the defendant 
was the father, while the defendant testified that he was not. The mother upon 
her cross examination testified that she never had criminal intercourse with 
any one but the defendant and one Blackman, who was the father of a former 
child but not of this one. The defendant then offered to prove by Baggett that 
he had sexual intercourse with the mother, the prosecuting witness, about the 
time she says the child was begotten, and about the time when it must have 
been begotten according to the law of gestation. This evidence, upon objection 
of the State, was ruled out and the defendant excepted.

The only issue presented was as to whether the defendant was the father of the 
child. This was to be found by the jury, but only upon competent evidence. 
This question has been before the Court several times, and the opinions do not 
seem to be in entire harmony.

In State v. Patterson, 74 NC, 157, it is held that where the prosecuting 
witness had testified upon cross examination (as in this case) that evidence 
offered to show that she had had sexual intercourse with another person for 
the purpose of contradicting the prosecutrix, was incompetent and properly 
excluded. This decision is put upon the ground that her answer was called out 
by the defendant; was collateral to the issu, and the defendant was bound by 
it. 

In State v. Britt, 78 NC, 439, the same question was substantially presented 
that was presented in State v. Bennett. But the Court undertakes to 
distinguish Britt's case from Bennett's case, and holds that the evidence was 
competent. Whether this distinction is very clearly drawn or not, this holding 
of the Court that the evidence was competent has since been followed in the 
case of State v. Perkins, 117 NC, 698. These cases are the latest expressions 
of the Court upon the question involved, and, if they are adhered to, there 
was error in ruling out this evidence.

It seems to us upon a review of the cases and the reason of the thing, that 
this evidence was competent and should have been admitted.

It was incompetent for the purpose of contradicting the prosecutrix, as was 
held in Patterson's case, supra. It was incompetent as corroborative evidence 
of the defendant, or of Martin Gainey, as there was no connection between what 
defendant swore and what Gainey swore and the fact as to whether Baggett ever 
had intercourse with the prosecutrix or not. To corroborate is to give 
strength to the testimony of the witness corroborated. Such evidence as that 
offered may tend to prove the issue, as we think, but it does not give 
strength to the testimony of defendant or of Baggett. Corroborative evidence 
is always secondary and is never primary.

But the issue is paternity of the child, and whatever tends to prove or 
disprove the affirmative of this issue is competent. It would not be competent 
to show that the prosecutrix, years before the birth of the child, had 
intercourse with some one else. Nor would it have been competent to prove that 
the prosecutrix at some other time had such intercourse, when it was apparent 
from the laws of nature that the child could not be the result of such 
intercourse. This would be incompetent because it did not tend to prove or 
disapprove the affirmative of the issue. To admit such evidence would only be 
to allow the defendant to attack the character of the prosecutrix in a way not 
allowed by law.

But it seems to us that when the defendant offered to prove that another man 
had intercourse with the prosecutrix, at the time when by the course of nature 
the child must have been begotten, this evidence bears directly upon the issue 
and is competent. It is true that it may not establish the negative of the 
issue, but in our opinion it tends to do so, and that the jury ought to have 
the right to consider it. It is common on the trial of such issues to allow 
the child to be exhibited to the jury. This is done by the State, when it is 
thought it favors the defendant, and by the defendant when he thinks it favors 
some one else. And if it is competent to offer the baby as evidence to prove 
that some one else is the father, why it is not competent to offer the father 
to show that he is the father. 

Suppose the mother is a white woman and the defendant is a white man, and the 
defendant offers a colored man to show that he is the father, that is, to show 
that he had intercourse with the prosecutrix at the time when the child must 
have been begotten by some one, and the evidence is objected to and ruled out; 
the defendant then produces the baby and it is a mulatto; this is competent, 
and its weight - the evidence of a colored child would be stronger 
(conclusive) while the other might not satisfy the jury, because the evidence 
might not be true, and if true, yet the defendant be the father. But still it 
seems to us that it is such evidence as the jury should be allowed to consider.

It seems to us there is an analogy between the cases supposed, and this case, 
that tends to sustain the competency of the evidence rejected.

There was a motion in arrest of judgment, but this can not be sustained. Error.

New trial.

Additional Comments:
In the NC Supreme Court February Term 1899

File at: http://files.usgwarchives.net/nc/sampson/court/jasperwa2136gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 7.9 Kb