v.
Wayne Everett Campo
The trial court inadvertently allowed the legitimacy of the child, Judy Ann, to be injected into the hearing when there was no competent evidence to raise the issue and the defendant was not making[*81] the point. The court in its charge, after “chasing this rabbit” with some loss of track now and then, finally instructed the jury, as he should have done when the matter was first broached, to disregard the whole debate as inconsequential and pointless or without substance in the case. All the evidence on the issue purports to come from the prosecuting witness who may not speak to the subject. S. v. Bowman, 230 N.C. 203, 52 S.E. 2d 345, and cases cited.
Conceding the presumption of legitimacy which arises from the birth of a child in wedlock may be rebutted by evidence of nonaccess on the part of the husband, nevertheless it is the policy of the law that the evidence of nonaccess must come from third persons and not from the husband or the wife. Neither spouse is to be heard on the subject. Ray v. Ray, 219 N.C. 217, 13 S.E. 2d 224; S. v. Green, 210 N.C. 162, 185 S.E. 670. The court’s instruction to the jury had the effect of striking out all the evidence on the point. This cured the inadvertence of its initial reception. Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933; S. v. Ballard, 79 N.C. 627.
The defendant’s only defense was that his wife left him without just cause, excuse or justification; that he had been out of work ever since their separation, and that consequently he had no way or means to support them; that his failure to support was due to his inability to find work and was not willful or malicious. S. v. Falkner, 182 N.C. 793, 108 S.E. 756; S. v. Cook, 207 N.C. 261, 176 S.E. 757; S. v. Hinson, 209 N.C. 187, 183 S.E. 397. The jury rejected this excuse and convicted the defendant on his own testimony.
The remark of the solicitor was incautious and should have been eschewed. However, it could hardly be regarded as prejudicial in the light of the defendant’s own evidence. S. v. Bowen, 230 N.C. 710, 55 S.E. 2d 466. The ruling thereon is disapproved, but held harmless on the facts of the present record. S. v. Haslebacher, 266 Pac. (Ore.) 900. Cf. People v. Freitas, 94 Pac. 2d (Cal.) 397.
The verdict and judgment will be upheld.
No error.