Opinion
SC 2441.
November 18, 1977.
Appeal from the Circuit Court, Madison County, S.A. Watson, Jr., J.
Robert M. Shipman, Huntsville, for appellant.
William J. Baxley, Atty. Gen., and Vanzetta Penn Durant, Asst. Atty. Gen., for the State.
A putative father appeals a jury's finding that he was the father of a child born to the prosecutrix. His principal claim for error is that the mother was allowed to state that, in her opinion, he was the father of her child. We find no error here.
The mother of the child testified that she had intercourse with the putative father on one occasion during November, 1974, that this was the first time she had ever had intercourse, and as of the date of trial, she had never had intercourse with anyone other than the putative father.
The alleged father claims that in a paternity proceeding, a mother should not be permitted to testify that any particular person is the father of her child, citing State v. Giles, 41 Ala. App. 363, 133 So.2d 62 (1961). Admittedly, Giles does question some earlier opinions which permitted a mother to state who she thought was the father of her child. But the question of the permissibility of such testimony was unnecessary to a decision in Giles, and we reject it. In Bembo v. State, 20 Ala. App. 406, 102 So. 786 (1924), cert. den. 212 Ala. 406, 102 So. 787 (1925), the facts were very similar to this case and the court not only found that the mother's opinion was admissible, but sufficient to prove an essential element in the proceeding. The court, on rehearing, noted:
"The prosecutrix testified that the defendant was the father of the bastard child, and that he had intercourse with her in Covington County before the birth of the child. The statement that the defendant was the father of the child was sufficient, if believed by the jury, to show the acts of intercourse referred to occurred within the period of gestation."
Any attempt to reconcile the cases which involve the so-called Opinion Rule would be fruitless. They have constructed a "jurisprudential mare's nest." Daniell v. State, 37 Ala. App. 559, 73 So.2d 370 (1954), cert. den. 261 Ala. 145, 73 So.2d 375 (1954). Consequently, we will not add yet more confusion by trying to harmonize the cases which apply the rule. Suffice it to say that it has caused problems enough, not only for judges, but also for legal writers. See Wigmore, Vol. VII, 3rd Ed., §§ 1917, 1918; McElroy's Alabama Evidence, 3rd Ed. § 127.01 (2).
One thing we can say. There certainly was no error to allow the mother to state who, in her opinion, was the father of the child in this case.
AFFIRMED.
TORBERT, C.J., and SHORES, J., concur.
JONES and BEATTY, JJ., concur specially.
By this decision we have approved the testimony of a lay witness giving her opinion on the ultimate fact in issue. In the past, we have refused to apply that rule when bastardy was in issue, as we have in others, e.g., when insanity was in issue. Williams v. State, 291 Ala. 213, 279 So.2d 478 (1973). We should go on to expressly overturn the ultimate fact rule in any case. Contrary to the views of its adherents, it does not invade the province of the jury any more than any other opinion, and its retention as an evidentiary rule is nothing but an anachronism. There is no satisfactory data upon which to conclude that jurors either do or would substitute such an opinion for their own judgment, any more than they do or would make such a substitution of any other allowable opinion. McElroy suggests an opposite conclusion. McElroy, Alabama Evidence, 3rd Ed. § 127.01 (2). See generally McCormick, Evidence at 26-29 (2d Ed. 1972). The federal courts allow such evidence. Rule 704, Federal Rules of Evidence. That should be the rule in our jurisdiction as well.
JONES, J., concurs.