Opinion by
Orlady, J.,The defendant was convicted of fornication and bastardy, and though he prfesents six assignments of error, all but the fifth may well be dismissed as without merit. During his closing address the district attorney toot the child of the prosecutrix in his arms and presented it to the jury, referring to it as exhibit “ A,” and called the attention of the jury to an alleged resemblance to the defendant. The counsel for the defense made a prompt objection, and requested the court to withdraw a juror, which was refused, and the trial judge concluded his charge to the jury by saying : “ In reference to the exhibition of the child the court will say that the child is here in the case. Mary Hornyak, the prosecutrix, says that Louis Pearl is the father of the child. You have seen the child, and while it was not offered as an exhibit in the case, it is in the case, and if there is any resemblance between this child and this defendant as he sits at the bar, which is apparent to the jury, the jury is at liberty to take that into consideration.”
The exact language used by the district attorney is not brought formally on the record, but the fact that the child was exhibited to the jury, and that an alleged resemblance to the defendant was suggested by that officer in his stating, “ if they are not the ears of the defendant, acquit him,” is conceded, and was so dealt with by the court below in refusing a new trial. We do not have any direct decision on this subject, and the practice varies in different sections of the state. In some counties such an exhibition and comment has always been permitted, and in others it has been as positively condemned.' Nor is the question settled in other states. A large number of cases bearing directly on the subject may be found collated in Wigmore on Evidence, Am. & Eng. Ency. of Law, and other digests, but the arguments adduced and conclusions reached are so conflicting as to leave the question as to which is the better practice uncertain.
While it is conceded that the progeny of persons of a particular race or of distinct types receive from the progenitors *100certain corporal characteristics which are radically different from the ones transmitted from other races and types, especially with reference to color, hair, features and complexion, yet the evidential value of such distinguishing traits is materially lessened through the intermixing of races, and while it is true in principle as a law of nature that like begets like, there are so many modifying influences affecting the human race that inherited resemblance is at best largely theoretical. It is equally well known that while a child is but a few weeks or months of age, there is always a peculiar immaturity of features which characterizes it as infantile, and that changes of that condition of uncertain and immature development are always expected; while resemblance to a particular person during that transitory stage may be readily imagined by interested parties, it is but rarely more than an imaginary similarity, so fanciful and visionary as to be of no value as an item of substantive proof.
In the trial of such cases the child is usually in court with the mother, and while not technically offered as an item of evidence, is so distinctly subjected to the view of the jurors that it is necessarily in the case, and such a presence cannot be ignored. For this reason it is held by all the English courts, and by a large number in our country, to be a sound rule to admit the inspection of the child by the jury to ascertain whether or not there is any similarity of distinctive and specific trait, provided that the child is, in the opinion of the trial court, old enough to possess settled features or other corporal indications: Wigmore on Evidence, 166. As stated in Sheehan’s Estate, 139 Pa. 168 : “ The alleged resemblance is a circumstance, but a very weak one. But, granting the likeness, it may be the result of the merest chance. We all know that striking likenesses often occur between persons who are not of the same blood, so strong that in many instances that one is taken for another.” This was said in a case dealing with a resemblance in the adult life of a person, and the weight to be given such alleged resemblance is made the more indefinite in this case by the immaturity of the child.
The trial judge recognized the unsatisfactory character of such proof, and also that the child, then sixteen months old, was in the court and before the jury. He fairly submitted the *101question of alleged similarity to tlie jury by saying, “ if there is any resemblance between the child and this defendant, which is apparent to the jury, the jury is at liberty to take that fact into consideration.” The effect to be given to it, meager and uncertain as it was, like the credibility of witnesses, was for the jury. Special instructions on this matter were not requested, the defendant relying on the proposition that such an exhibition was of itself a fatal error. To this proposition we cannot agree. The case has been tried twice, and the contention of the defendant is answered by many decisions of courts of high character. Under our practice the disposition of the question is one largely within the discretion of the trial judge, and in this instance there is not sufficient on the record to warrant a reversal of the judgment on account of an abuse of such discretion.
The judgment is affirmed.