in a separate concurring opinion, after referring to the terms ‘‘prima facie” and “presumptive” evidence, and the Legislative intention in th<¿ change, says ; “Keeping that circumstance in mind, and having regard to the construction given to the expression “prima facie evidence” in the Act of 1814, and also to the fact that it had been held that the woman when offered as a witness on the trial of an issue might be discredited and impeached, though her examination could only be disproved, it would seem sufficiently clear that as evidence the Act meant to put the ex.amination before the Justice on the same footing with the testimony of the woman in person. Therefpre it was competent for the defendant to offer any evidence calculated to impair confidence in the .examination.”
Concurring in this construction of the statute, we think this ease disposes of the question before us.
*442The defendant swears that he has never had sexual connection with the -mother of the child, and to corroborate his-own statement, and disprove the charge made against himself, professes to show her criminal intercourse with another man about the time when in the course of nature the child must have been begotten, and that this intercourse had become habitual. The evidence tending to prove this was clearly competent and proper. The Judge also erred in rejecting testimony that the child resembled the same man. It was admissible, as was the other, to show that the defendant was not, and another man was, its father.
In the case of State v. Woodruff, 67 N. C. 89, the jury was allow-ed to look at the child and see if it favored the defendant, with a view to ascertain its paternity, and the Court say; “Where the question is as to the identity of a party, or his resemblance to other persons, the law has very properly adopted a very different rule of common sense and common observation, and it allows all 'persons to testify to such identity or to such resemblance, who have had an opportunity of seeing the persons, if but for an instant.”
To the same effect is Warlick v. White, 76 N. C. 175. The only case to which our attention has been called and which seems to conflict with the views we have expressed, is that of State v. Bennett, 75 N. C. 305. In that case it is held that proof of the woman’s illicit intercourse with another man nine months before the birth of the child, does not rebut the presumption of paternity under the statute and was properly rejected. If the case be regarded as an authority, it is clearly distinguishable from ours, in the fact that here is the defendants own testimony that he was not, and in the nature ■ of things could not be the father of the child, and other circumstances are deposéd to, tending to sustain his oath in opposition to the oath of the woman.
The evidence offered in State v. Bennett, was not by itself inconsistent with the imputation of the defendant’s pater*443nity, and- therefore did not, if true, overcome the presumption. But say the Court; “If the defendant had further-proposed to prove that he had had no connection with the woman during the time in which, according to the course of nature' the child must have been begotten, the presumption would have been rebutted.” This further proof would have rendered the rejected evidence competent, and is-present in our case.
We hold that the evidence ought to have been received.
Error.
Per Curiam. Venire de novo.