State v. Smith

¶11. EVIDENCE : nfi)i§ouo:fex" ciuiii to jury. I. The child in this case was two years and one month old. The defendant claims that any resemblance, if it should be shown to exist, between J 3 su°k 11 child, and a man alleged to be its father is ^00 unroiia|)ie to constitute legal evidence of the alleged paternity.

¶2It is a well known fact that resemblances often exist between persons who are not .related, and are wanting between persons who are. Still, what is called family resemblance is sometimes so marked as scarcely to admit of a mistake. "We are of the opinion, therefore, that a child of the proper age may be exhibited to a jury as evidence of alleged paternity.

¶3Precisely what should be deemed the proper age we need not determine. It was held in State v. Danforth, 48 Iowa, 43, that it was error to allow a child three months old to be exhibited. That case is relied upon by the defendant in this. But a child which is only three months old has that peculiar immaturity of features which characterizes an infant during the time that it is called a babe. A child two years old or more has, to a large extent, put off that peculiar immaturity. *106In allowing a child of that age to be exhibited, we think the court did not err, especially under the instruction given, to which we shall hereafter refer.

¶4II. It is claimed by the defendant that the statement of counsel for the State, wherein he called attention to an alleged point of resemblance, was improper, and should not have been allowed.

¶5While we think that the court might properly have excluded such statement, wo are unable to conclude that the defendant was prejudiced by it. A resemblance so recondite £#to call for demonstration, must, we think, have impressed the jury as not very reliable. Besides the court instructed the jury that if they did not clearly see such resemblance they should disregard all claims of resemblance on the part of the State.

¶6In our opinion the judgment must be

¶7Aeeirmkd.