State v. Saidell , 70 N.H. 174 ( 1899 )

1. The comparison of the child with the defendant as an individual, or with his race, was properly allowed. "Under the well established physiological law that like begets like, and that generally there is a resemblance, more or less strong and striking, between the parent and his child, it was a fair matter of argument before the jury by the counsel on both sides, whether or not there had been anything in the complexion, appearance, and features of the child which the witness had produced and identified before them tending to indicate its other parent." Gilmanton v. Ham, 38 N.H. 108, 113. Even in those jurisdictions where the rule above laid down is not followed, comparison is allowed in respect to race characteristics. "No one will doubt the propriety or reason upon which these decisions are based, . . . for it is well understood that there are marked distinctions, physical and external, between the different races of mankind, which may enable men of ordinary intelligence and observation to judge whether they are of one race or another." Clark v. Bradstreet,80 Me. 454. The instruction excepted to limited this evidence to its legitimate sphere and was unobjectionable.

2. It would seem that it was proper to allow the newspaper item to be read after the defendant had inquired fully as to its contents. But whether it was so or not is of no consequence, for the item related solely to a matter which was not in dispute. If its admission was erroneous, it was also harmless. Wait v. Association, 66 N.H. 581.

3. Evidence to refute the insinuations against the complainant's character was competent. Valley v. Railroad, 68 N.H. 546.

4. This exception is disposed of by the finding at the trial term. Wason v. Burnham, 68 N.H. 553.

5. The cross-examination of the witnesses as to their conversation with Isaac was designed to impeach their testimony. A part of the conversation having been called for, it was competent to have the whole stated upon redirect examination, so far as it explained or qualified the matters inquired about on cross-examination. Wentworth v. McDuffie, 48 N.H. 402.

6. The inquiry of the complainant's father was evidently made for the purpose of showing that she made no accusation against the defendant until this proceeding was commenced. The inference to be drawn from this would be that the charge against him was an afterthought. It therefore became material to show the time when and the circumstances under which she first made complaint. Mangle v. Holmes, 7 Allen 136.

7. The materiality of evidence concerning the conduct of the justice before whom the preliminary examination was had is not apparent; but if it was material, the insinuation contained in the defendant's inquiry as to the conduct of the justice was properly rebutted by evidence that the trial was conducted in the usual way. Valley v. Railroad, supra.

8. This exception is disposed of by the failure of the defendant to properly insist upon it. Felch v. Weare, 66 N.H. 582.

Exceptions overruled.

PIKE, J., did not sit: the others concurred.