{
  "id": 8559504,
  "name": "STATE v. JAMES HOWARD TEDDER",
  "name_abbreviation": "State v. Tedder",
  "decision_date": "1962-10-31",
  "docket_number": "",
  "first_page": "64",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T19:21:31.620483+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. JAMES HOWARD TEDDER."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\n\u201cA child bom in wedlock is presumed to be legitimate, and, as stated by Ruffin, C.J., in S. v. Herman, 35 N.C. 502, quoting from Coke on Littleton, this presumption exists, \u2018if the issue be born within a month ora day after marriage.\u2019 \u201d West v. Redmond, 171 N.C. 742, 88 S.E. 341.\nIn the case of Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, this Court said: \u201cNothing is allowed to impugn the legitimacy of a child short of proof by facts showing it to be impossible that the husband could have been its father.\u201d S. v. Green, 210 N.C. 162, 185 S.E. 670.\nThe proffered testimony of the defendant\u2019s witnesses was properly excluded by the court below. It was not positive proof of the fact of nonaccess. In fact, it had no logical tendency to prove nonaccess.\n\u201c* * * (E) vidence must have some logical tendency to prove a fact in issue in order to be competent. And a witness is not competent to testify as to the nonexistence of a fact when his situation with respect to the matter is such that the fact might well have existed without the witness being aware of it. * * *\u201d Strong, North Carolina Index, Vol. II, Evidence, section 15, page 259; Johnson v. R.R., 214 N.C. 484, 199 S.E. 704; Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316.\nA careful examination of the record in the trial below leads us to the conclusion that no prejudicial error has been shown that would justify a new trial.\nNo error.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Attorney General Bruton, Asst. Attorney General James F. Bullock for the State.",
      "Harold B. Wilson for defendant"
    ],
    "corrections": "",
    "head_matter": "STATE v. JAMES HOWARD TEDDER.\n(Filed 31 October 1962.)\n1. Parent and Child \u00a7 1\u2014\nA child born in wedlock is presumed legitimate regardless of the length of time between the date of the marriage and the date of the child\u2019s birth, which presumption can be rebutted only by proof that it was impossible that the husband could have been the child\u2019s father, and a witness is not competent to testify as to nonaccess when under the circumstances access could well have existed without knowledge of the witness.\n2. Evidence \u00a7 15\u2014\nA witness is not competent to testify as to the nonexistence of a fact when his situation with respect to the matter is such that the fact might well have existed without the witness being aware of it.\nAppeal by defendant from Gwyn, J., 5 March 1962 Term of Foesyth.\nThis is a criminal action tried upon a warrant charging the defendant with the wilful failure to provide support for his minor child begotten upon the body of his lawful wife, Essie Tedder.\nThe State\u2019s evidence tends to show that the defendant James Howard Tedder married Essie Montgomery Tedder on 27 August 1960 and that a child was born on 27 January 1961; that defendant lived with his wife and child until April 1961 when the wife left defendant because he was \u201crunning around\u201d with one Doris King and would not support her or the child.\nThe evidence further tends to show that Mrs. Tedder was between four and five months pregnant at the time she was married; that she informed the defendant prior to their marriage that she was pregnant; that he didn\u2019t say anything when she first told him she was pregnant. She testified that thereafter \u201che came over one day and wanted to know if I didn\u2019t think we ought to get married. * * * I told him, \u2018If you don\u2019t intend to make a home for me and the baby, I don\u2019t want to marry you,\u2019 * * He said he wanted to make a home for me and the baby, and he promised me if I would marry him that is what we would have.\u201d\nThe defendant undertook to introduce evidence of nonaccess which, in the opinion of the court, under the facts and circumstances, was inadmissible. The jury returned a verdict of guilty as charged. Judgment was entered on the verdict and the defendant appeals, assigning error.\nAttorney General Bruton, Asst. Attorney General James F. Bullock for the State.\nHarold B. Wilson for defendant"
  },
  "file_name": "0064-01",
  "first_page_order": 104,
  "last_page_order": 106
}