On trial before Norwood, J., at EDGECOMBE, the jury found a special verdict as follows: "That the defendant is the father of the child; that the husband of Avy Perry has not been absent seven years next before 13 March, 1824, but has been absent from the State of North Carolina six years ten months; that he was heard of in the State of Tennessee in 1820 and in the State of Georgia in 1821." *Page 341
The presiding judge was of opinion that the law was in favor of the defendant on this finding, and ordered the proceedings to be dismissed, whereupon the Attorney-General for the State appealed. There are two objections made by the defendant to his being charged with the maintenance of the child sworn against him. The first is that the mother is a married woman and that the power of the justices and the county court is confined by the (624) express terms of Laws 1741, ch. 30, sec. 10, to the case of a single woman being pregnant or delivered. The other is that the access of the husband shall be presumed, unless he was beyond sea so long a period before and during gestation as to render it impossible that he should have been the father.
It will appear from an accurate examination of the law that the first objection is untenable; for although it uses the expression, "single woman," in the part of the section making provision where the woman refuses to declare the father, yet in the subsequent part of the same section it proceeds: "But in case such woman shall, upon oath, before the said justices, accuse any man of being the father of a bastard child," etc., expressions which comprehend every woman, married and single, who shall have a child born under such circumstances that the law would adjudge it to be a bastard. If a married woman have a child born by an adulterous intercourse, in violation of the rights of matrimony, the nuptial state of the woman does not prevent the law from pronouncing the child a bastard. The mother having a child under such circumstances is, in the sense of the act, a single woman; for, the bastardy of the child being established, it follows as a necessary consequence that it was born out of lawful matrimony, and our act employs the same terms with the Statute 6 Geo. II., which was passed a few years before it, under which statute convictions have been repeatedly had upon proof of the nonaccess of the husband. Rex v.Bedall, 2 Strange, 1076; Rex v. Reading, Andr., 10. In those cases the objection was not even taken, and in Rex v. Luffe, 8 East, 196, where it was taken, it was overruled without hesitation.
The other objection is founded upon the old rule of the common law, that if the husband was within the four seas, that is, within the jurisdiction of England, no proof of nonaccess to his wife was admissible, but the child was deemed to be his. But this notion, entirely destitute of any rational foundation, has been long since (625) exploded, and it is now held that if, by reason of imbecility or on any personal account, or from absence from the place where the wife was, the husband could not be the father of the child, it shall be adjudged a bastard. This position is so plainly shown by the authorities *Page 342 cited in the argument that it is needless to dwell upon it. It is also equally well established that the wife is not a competent witness to prove the nonaccess of her husband, upon principles of public policy, which will not allow her to give evidence against the husband in cases affecting his interest or character, except in cases of necessity. As to her criminal intercourse with another, she may be examined, because a fact so secret in its nature can scarcely ever be proved by other evidence. To this fact alone the woman certified, so far as the record speaks; the jury have found the nonaccess, but there is no ground to presume that the verdict was in this respect founded on the evidence of the woman. Every fact is proved to warrant the application of the law that the defendant be adjudged the reputed father and charged with the maintenance of the child as the county court shall order; to which end a procedendo must issue to that court.
PER CURIAM. Reversed.
Cited: S. v. Allison, 61 N.C. 346; Boykin v. Boykin, 70 N.C. 265; S.v. McDowell, 101 N.C. 736; S. v. Peeples, 108 N.C. 769; S. v. Liles,134 N.C. 742; Ewell v. Ewell, 163 N.C. 236.
(626)