1. Whether a child was a “ full time child ” is not a question for experts, but may be testified to by any physician of ordinary experience, who attended at the birth.
2. The declarations and acts of Dean, not in the presence of the complainant “ or brought home to her knowledge,” were rightly excluded, as not in furtherance of the common purpose of the alleged subsequent conspiracy. The claim that they were admissible, as a part of the res gestee of the conspiracy, is founded upon a misapprehension of what constitutes the res gestee. The object of the supposed conspiracy was, not to beget the child, or to procure an abortion, for the purpose of charging it upon the defendant; but to charge him with the paternity of a child already begotten, and which their attempts at abortion had failed to remove. The acts and declarations excluded had no reference to the defendant, nor to this alleged common purpose. It is not contended that they were admissible upon any other ground.
3. The instruction in regard to the degree of proof required to sustain the complaint was clearly right. Richardson v. Burleigh, 3 Allen, 479.
4. The testimony of Nichols, offered to show the character of the contents of the package delivered by him to Dean, was competent, if the jury should be satisfied that it was the same package which Dean sent by Pratt to the complainant. And we are of opinion that it was for the jury and not for the court to determine the question of its identity. The delivery by Nichols to Dean, on Tuesday or Wednesday “ of cattle-show week,” was not so remote from the time of the delivery by Dean to Pratt, on Friday of the same week, as to enable the court to say that the jury might not properly find, with the aid of the correspondence in the appearance of the package testified to in each case, that they were the same. If Dean was, at that time, active in procuring means to produce an abortion upon the *54complainant, with her concurrence, it was a strong circumstance in support of the defence set up in this case. The exclusion of this testimony makes a new trial necessary.
5. We think also that the testimony to show points of dissimilarity between the child and Dean should not have been admitted. Even where there is a noticeable resemblance, there may be equally marked points of dissimilarity. Points of dissimilarity, not implying a difference of race, do not tend to disprove paternity. They are, at most, of much less significance than points of resemblance. But proof of resemblance was excluded in Eddy v. Gray, 4 Allen, 435. That decision was based, somewhat, upon one in Maine, the reasons for which were considered quite satisfactory. Keniston v. Rowe, 16 Maine, 38. In the latter case, however, the evidence excluded was of dissimilarity. Resemblance was held to be properly a matter of consideration by the jury upon this issue, in Gilmanton v. Ham, 38 N. H. 108. But in that case the jury had both the child and the putative father before them, and took the fact from their own observation.
There is a still further objection to the testimony admitted in the present case. It instituted a comparison of features, complexion, &c., not between the child and the defendant, but with another party, not charged with the paternity otherwise than incidentally, by way of diverting the force of the evidence against the defendant. Exceptions sustained.
A new trial was had, and a verdict of guilty rendered, at March term 1870 of the superior court, and at the following September term that court, at a time assigned, of which the defendant was duly notified, but at which he was not present in court nor in custody, passed an order, that the defendant should “stand charged with the maintenance” of the complainant’s child with the assistance of the mother as follows: “He shall pay the complainant forthwith $250 as and for said maintenance from the time of the birth of the child to September 19, 1870; and from and after said September 19, he shall pay the further sum of $1.50 per week, payable quarter yearly until the *55further order of the court;” that the defendant should give to t.he complainant a bond with sufficient sureties, in the sum of $1000, conditioned “for the performance of said order of court, and also to indemnify and save harmless against all charges for the maintenance of said child the parents of 'said Elizabeth F. Young, and also the town of Raynham; ” that he should “ stand committed” until he gave said bond : and that the complainant should recover against him the costs of suit.
Immediately upon the reading of the order in open court the defendant, by his counsel, alleged exceptions thereto and to the right of the court to pass the same. These exceptions were argued at October term 1870.
J. Brown, for the defendant.
S. B. Townsend, for the complainant.
Ames, J.In proceedings under the Gen. Sts. c. 72, in relation to the support of bastard children, the complaint, the issue of the warrant, the arrest of the party accused, and his summary production before the magistrate, are according to the manner of criminal procedure. At all later stages of the case, until the time of the final order, the course of proceeding is the same as in ordinary civil actions. The defendant insists that, at this stage of the case, it becomes a criminal prosecution again, and the final order of the court is in the nature of a sentence, which cannot be passed unless he is personally present. In Hodge v. Hodgdon, 8 Cush. 294, 297, Shaw, C. J., in giving the opinion of the court, says that “ on a final judgment, when the court make an order on the respondent for the payment of money, and where he is required by law to give a new bond with sureties, or be committed to prison until he give such new bond, he must be personally present, in order that the latter alternative may oe complied with.” He also says in substance that there is no provision that the court may issue an execution to enforce its judgment; and that the order that the defendant stand committed presupposes his personal presence. In Towns v. Hale, 2 Gray, 199, the court decided that, if the defendant was attending court at the passage of the final order, and surrendered himself to be committed for not complying with it, it was a fulfil*56ment of the condition of the original bond. Mr. Justice Dewey remarks, in giving the opinion of the court, that, “ on the fina, judgment, the party must of course be present and give the required new bond, or be committed to prison until he give such bond.”
It is to be remembered, however, that the two cases above quoted were decided under the Rev. Sts. c. 49, and that the statute now in force has made a great change in the law regulating proceedings of this nature. As the law then stood, no order of affiliation could be passed until after a verdict of guilty. Jordan v. Lovejoy, 20 Pick. 86. A default was merely a breach of the original bond. If the defendant did not appear, the court could render no judgment, nor make any Order, and could only enter his default. The prosecution in that case was at an end, and the complainant’s only remedy was upon the bond. But under the present statute, (Gen. Sts. c. 72, § 7,) it is provided that “if the jury find him guilty, or if he is defaulted, he shall be adjudged by the court to be the father,” “ and shall stand charged with the maintenance,” &c., “ in such manner as the court shall order, and shall give bond with sureties to perform said order; ” “ and he may be committed to prison until he gives such bond.” Under the present law, therefore, the default is a confession by the defendant of all that could be found against him by a verdict of guilty, and the court is expressly authorized, upon his default, (that is to say, in his absence,) to render judgment and to pass the final order. If the final order is good when the •ecord shows that he is not in court, on the ground that his default is a confession of his guilt, it apparently must be equally good when his guilt is made certain by the verdict of the jury. The case, even at this stage of it, is still a civil action. It is true that the final judgment of the court, from the necessity of the case, differs materially from the ordinary form of judgment at common law in a civil proceeding, and more nearly resembles a decree for alimony in a suit for divorce, or an order for periodical payments in an equity suit. It is hardly corroct to say that the order is alternative, in the sense of requiring one ol two things, of which one is to be the equivalent of the other *57The substance of the order is, that he give the required bond; and the commitment is merely to compel him to give it. If he were present in court, and the order were that he stand committed, he would be taken into custody, but a mittimus, or warrant, or a certified copy of record, would still be necessary to justify his imprisonment, and to show how it might be terminated. It is not easy to see why the court cannot issue appropriate process to compel a compliance with an order, which it can lawfully pass in the absence of the party; or why a party could not as well be arrested, wherever he may be found, under such an order, as he could upon an execution in common form. The statute provision is, not that he stand committed, but that he may be committed, and the order to that effect may be passed upon his default, that is, in his absence. When imprisoned for noncompliance with the order, he has the benefit, after the expiration of ninety days, of the laws for the relief of poor prisoners committed on execution. Gen. Sts. c. 72, § 11.
Under the law as it now stands, we find nothing that renders it indispensable that the defendant should be actually present when the final order is passed. The bond which he is ordered to give is for the benefit of the complainant, and also for the indemnity of other possible parties in certain contingencies, but there is no direction that the bond be delivered to the clerk or made a part of the record of the case. We think therefore that the order passed in this case is valid, and that, although it directs that the defendant stand committed, instead of the statute phrase that he “be committed,” this difference of phraseology is unimportant.
The bond which he has been ordered to give appears to be such as the statute requires. In what mode it can be made use of by the town of the complainant’s settlement there is no occasion at present to inquire. The payments are of course to be hers until such town may become entitled to claim them. The provision that they are to continue until further Order of court is for his benefit, in order that upon proper application he may avail himself of any sufficient legal reason for their reduction or discontinuance.
We see no reason why the complainant, as the prevailing party, should not recover her costs. Exceptions overruled.