¶1specially concurring. I concur in the judgment of reversal, but not in all the reasoning by which that conclusion is reached in the opinion delivered by the Presiding Justice. In my opinion, evidence that a bastard child resembles in appearance the person charged to be its father is admissible where the points of resemblance are pointed out, and should be submitted to the jury for what it is worth. Often it may be of little probative value; but that is a matter for the jury, and not the court. It is a circumstance; and I am at a loss to understand in what respect it differs from any other circumstantial evidence.' A man may have strongly marked physical characteristics, and the fact that a child of which he is alleged to be the father has those same characteristics may be very high evidence of his guilt of the charge of bastardy. At all events, courts can not say as a matter of law that it proves nothing. A jury has as much right to say whether a red-headed, blue-eyed, hook-nosed baby is the child of a man with those same features as it has to establish the identity of a man charged with murder by means of his physical characteristics. See 1 Gr. Ev. § 14 (S).
121 Ga. 491
McCalman v. State
Decided December 21, 1904
Supreme Court of Georgia · decided 1904-12-21
<p>1. The demurrer to the indictment was properly overruled.</p> <p>2. Upon a trial under an indictment charging the accused with the offense of bastardy, evidence that he had previously been tried under an indictment charging him with the seduction of the mother of the bastard child, and found guilty of the offense of fornication, was irrelevant and inadmissible.</p> <p>3. Where the magistrate who presided at the preliminary hearing of a bastardy proceeding signed entries made on the warrant, to the effect that, after evidence heard, the accused was required to give the bastardy bond, in terms of the law, and that, having failed and refused to do so, he was recognized in a given sum to the superior court, such entries were admissible as original evidence on the subsequent trial of the accused under an indictment for bastardy founded upon such bastardy proceedings.</p> <p>4. The court did not err in instructing the jury that the warrant and the entries thereon were in absolute compliance with the statute in such cases provided.</p> <p>■5. Testimony of a witness that the bastard child resembled the accused was inadmissible. (Candler, J., dissenting.)</p> <p>6. Testimony of the mother of the child that after she became pregnant she sent word to the accused to come and marry her, as he had agreed to do, and of her father that he carried such message to the accused, was irrelevant and inadmissible.</p> <p>7. When in a motion for a new trial error is assigned upon the exclusion of evidence offered to impeach a witness by proof of contradictory statements previously made, it should appear from the motion itself that the proper foundation for the introduction of such evidence was laid.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1904-12-21
How this case has been cited
Cited by 20 later decisions — most recently October 1996
20 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
View the full empirical analysis of this case →