Sims v. State

Bkoyles, J.

1. The discretion of the court in admitting legal evidence at any stage of the trial before the verdict is rendered will not be controlled, unless it appears that the defendant, in consequence of the discharge of his witnesses or from some other cause, has been injured. John v. State, 16 Ga. 200 (5); Williams v. State, 60 Ga. 368 (3) (27 Am. R. 412); Glasco v. State, 137 Ga. 336 ( 73 S. E. 578 ); Caswell v. State, 5 Ga. App. 483 (3), 486 ( 63 S. E. 566 ); Chatman v. State, 8 Ga. App. 842 (2), 845 ( 70 S. E. 188 ); Abbott v. State, 11 Ga. App. 44 (5) ( 74 S. E. 621 ); Mathis v. Colbert, 24 Ga. 384, 389 ; 38 Cyc. 1368 (V).

2. In a bastardy case, while testimony of a witness that the alleged bastard in appearance resembled the accused is not admissible (McCalman v. State, 121 Ga. 492 (5), 496, 49 S. E. 609 ), and while there'is considerable conflict in the decisions of the courts of other States upon the question of whether the bastard child may be exhibited to the jury as evidence of the relationship to the accused, the weight of authority seems to be in favor of such exhibition. 52 L. R. A. 502; State v. Smith, 54 Iowa, 104 ( 6 N. W. 153 , 37 Am. R. 192); Finnegan v. Dugan, 14 Allen (Mass.), 197; Young v. Makepeace, 103 Mass. 50, 54 ; Scott v. Donovan, 153 Mass. 378 ( 26 N. E. 871 ); Gilmanton v. Ham, 38 N. H. 108; State v. Saidell, 70 N. H. 174 ( 46 Atl. 1083 , 85 Am. St. R. 627 ); Gaunt v. State, 50 N. J. L. 490 ( 14 Atl. 600 ); State v. Woodruff, 67 N. C. 89 ; Crow v. Jordan, 49 Ohio St. 655 ( 32 N. E. 750 ); State v. Horton, 100 N. C. 443 ( 6 S. E. 238 , 6 Am. St. R. 613 ); Jones v. Jones, 45 Md. 145 ; Re Jessup, 81 Cal. 408, 418 ( 21 Pac. 796 , 22 Pac. 742, 1028 , 6 L. R. A. 594); Paulk v. State, 52 Ala. 427, 429 ; Kelly v. State, 133 Ala. 195 ( 32 So. 56 , 91. Am. St. R. 25); 1 Greenleaf, Ev. 29, § 13c (b); 1 Wigmore, Ev. 166; 2 Wigmore, Ev. § 1154 (2); Land v. State, 84 Ark. 199 ( 105 S. W. 90 , 120 Am. St. R. 25 ); Shailer v. Bulloch, 78 Conn. 65 ( 61 Atl. 65 , 112 Am. St. R. 87 ).

3. During the trial of the accused on the charge of bastardy, and after both sides had closed, and the argument of counsel had been made and the judge had delivered his charge, one of the jurors asked the court if the jury could see “the babies.” Whereupon the judge ordered the alleged bastards brought around so that the jury could see them; which was done, and the jury inspected them. No objection to this proceed *212 ing was made by the defendant, or his counsel, until after the jury had retired to make up their verdict, when counsel for the accused moved the court to declare a mistrial. This the court declined to do, and the defendant excepted: Reid, that no error was committed.

Decided April 20, 1915. Accusation oí bastardy; from city court of Newnan — Judge Post. December 18, 1914. W. G. Wright, for plaintiff in error. W. L. Stallings, solicitor, contra.

Judgment affirmed.