Practical Tests in Evidence.

nature of such resemblances rather imposing a duty on the court in conjunction with the admis sion of the proof than militating against the rele vancy of the inquiry. Such has been the view taken by the courts in this country. . . . There seems to be no good reason why a jury, if the question of resemblance is to be considered by them, should be compelled to base their decision upon a second-hand view. The effect of the substitu tion of testimony for inspection is to put the subject-matter of investigation one further re move from its responsible judges, and thus to add to the infirmities inherent in proof of this class the additional danger of bias and imposition. Inspection is like admission, in that while not testimony it is an instrument for dispensing with testimony, and in a doubtful case the class of testi mony it dispenses with might be a controlling cir cumstance. Thus regarded, and in view of the almost utter worthlessness of the testimony of witnesses adduced on the question of the resem blance of a bastard to an alleged parent, it is obvious that inspection is on this account also to be preferred." In Finnegan v. Dugan, 14 Allen, 197, the child was in court, and the judge, against defendant's objection, charged the jury that they might consider whether there was any resemblance between the child and the defendant. In affirming the judgment the Supreme Court says : — "It is a well-known physiological fact that peculiarities of feature and personal traits are often transmitted from parent to child. Taken by itself, proof of such resemblance would be in sufficient to establish paternity, but it would be clearly a circumstance to be considered in con nection with other facts tending to prove the issue on which the jury are to pass." On the same side are State v. Woodruff, 67 N. c. 89; Gilmanton v. Ham, 38 N. H. 108; State v. Arnold, 13 Ired. 184. In Pettie v. Howe, 4 Thomp. & Cook (N. Y. Supr. Court), the question did not precisely arise; but the court said : " If this species of physiological evidence is admis sible in a court of justice, it should not be covertly given." This was an action of

550

crim. con.; and a child, alleged to be the offspring of the adulterous intercourse, was in court, and the plaintiff was permitted to testify that the hair of four other children previously born of himself and his wife was black. This was held error. But thq question fairly arose in respect to a child less than one year old, and the con trary view was taken, in Hanawalt v. State, 64 Wis. 84; s. c. 54 Am. Rep. 588. The court said : — "In the Douglas case Lord Mansfield is re ported as saying : ' I have always considered like ness as an argument of a child's being the son of a parent; and the rather as the distinction be tween individuals in the human species is more discernible than in other animals. A man may survey ten thousand people before he sees two faces perfectly alike, and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a differ ence in the gestures, the smile, and various other things, whereas a family likeness runs generally through all these, for in everything there is a resemblance, as of features, size, attitude, and action.' This language attributed to Lord Mans field is taken from Wills on Circumstantial Evi dence, p. 123. This author, on the next page, says that in a Scotch case, when the question was who was the father of a certain woman, an allega tion that she had a strong resemblance in the features of the face to one of the tenants of the alleged father was held not to be relevant as being too much a matter of fancy and of opinion to form a material article of evidence. In the case of Jones 7: Jones, supra, the learned judge who wrote the opinion refers to the language used by Lord Mansfield in the Douglas case, and dis approves of it as authority, and thinks it has not been followed as a precedent in the English courts; and he quotes with approval the language of Justice Heath in the case of Day v. Day, de cided in 1797, in which the learned judge stated to the jury ' that resemblance is frequently exceed ingly fanciful, and ne therefore cautioned the jury as to the manner of considering such evidence.' In any case this kind of evidence is inherently unsatisfactory, as it is a matter of general knowl edge that different persons, with equal oppor