State v. Wade, 264 N.C. 144, 145, 141 S.E.2d 34, 35. If there was access, there is a conclusive presumption that the child was lawfully begotten in wedlock. Ray v. Ray, supra; Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509; Rhyne v. Hoffman, 59 N.C. 335. However, even though the husband, residing in the same community, had the opportunity of access, "[t]hat the wife is notoriously living in open adultery is a potent circumstance tending to show nonaccess," for it is unreasonable to suppose that, under those circumstances, he would avail himself of such opportunity.

New Mexico: Yates v. Marcia, 148 P. 493. North Carolina: State v Herman, 35 N.C. 502; Rhyne v. Hoffman, 59 N.C. 335; State v. Bowman, 52 S.E.2d 345. Oregon: Westphall v. Westphall, 197 P. 271.

When conception occurs during the marriage of its mother, a child is presumed to be the legitimate offspring of the then husband of the mother, notwithstanding it is born after the termination of the marriage. Rhyne v. Hoffman, 59 N.C. 335. The presumption of legitimacy arising in such case is not conclusive, but may be rebutted by evidence which proves that the husband could not have been the father because he was impotent or did not have access to the mother at the time the child was begotten.

This language has been adopted, in whole or in part, by American courts in many cases. Scanlon v. Walshe, supra, 134; Orthwein v. Thomas, supra, 563; Sugrue v. Crilley, 329 Ill. 458, 464; State v. Romaine, 58 Ia. 46, 47, 48; Bell v. Oklahoma, 8 Okla. 75, 83; 8 Ency. Ev. 170. Other cases call for "irresistible evidence" (Rhyne v. Hoffman, 59 N.C. 335, 336), or "clear and irrefragable proof." Caujolle v. Ferric, 23 N.Y. 90, 108.

We have abandoned the "nonsence" of the rule of the four seas. We no longer adhere to Lord CAMPBELL'S dictum ( Piers v. Piers, 13 Jurist, 569, 572) that a mulatto child born of a white mother must be ascribed to the white husband, and not to the black paramour, if the husband had access to his wife during the period of gestation (Thayer, supra, p. 346; Bullock v. Knox, 96 Ala. 195; Rhyne v. Hoffman, 59 N.C. 335). Extravagances hardly less violent there have been at other times in insisting upon the negation of every shadowy possibility.

Dec. 778; R.S. 1909, secs. 342, 2370; Nelson v. Jones, 245 Mo. 579; Egbert v. Greenwalt, 38 Am. Rep. 263; 3 Ency. of Law, par. 2, p. 72; 3 R.C.L., par. 6, p. 726; Kennedy v. State, 173 S.W. 842; Johnson v. Johnson, 30 Mo. 72; Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545; Powell v. State, 95 N.E. 660; 7 Corpus Juris, par. 7, p. 942; Drennan v. Douglas, 40 Am. Rep. 597. (2) The presumption of law is that a child is presumed to be legitimate child of its mother's husband at the time it was begotten and this presumption being raised its mother would be an incompetent witness to prove that such child was not begotten by such husband. In re Miles Estate, 70 P. 91; Mink v. State, 19 N.W. 445, 50 Am. Rep. 386; 3 R.C.L. par. 12, p. 732; Kennedy v. State, 173 S.W. 842; Liles v. State, 174 S.W. 1196; Ewell v. Ewell, 79 S.E. 509; People v. Case, 137 N.W. 55; Wallace v. Wallace, 114 N.W. 258; Foote v. State, 144 S.W. 275; Cross v. Cross, 23 Am. Dec. 778; Mink v. State, 19 N.W. 445; Rhyne v. Hoffman, 59 N.C. 335; Powell v. State, 95 N.E. 660. Any evidence of the wife's adultery at or about the time of conception is not enough to rebut the presumption. Cross v. Cross, 23 Am. Dec. 778; 7 Corpus Juris, par. 15, p. 946; Drennan v. Douglas, 40 Am. Rep. 595; Powell v. State, 95 N.E. 660; 7 Corpus Juris, p. 946, note 86, and p. 945, note 75; Greenleaf on Evidence (15 Ed.), sec. 28, p. 44; Egbert v. Greenwalt, 38 Am. Rep. 260. (3) Whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality.

(745) In 8 Enc. Ev., p. 174, the author says: "Declarations of neither husband nor wife can be received for the purpose of assailing the legitimacy of a child born to the wife during wedlock"; and he cites many cases in the note in support of the text, among others, Johnson v. Chapman, 45 N.C. 217, where Nash, C. J., says: "The only evidence upon which the defendants rely to prove the plaintiff to be illegitimate consists of the declarations of Frederick Johnson to his wife. This evidence is not competent. Mr. Greenleaf, vol. 2, sec. 151, says the husband and wife are alike incompetent to prove the fact of nonaccess while they lived together, nor are the declarations of either competent to prove the illegitimacy, though the child was born three months after marriage, and therefore they had separated by mutual consent"; and Rhyne v. Hoffman, 59 N.C. 336, in which Battle, J., speaking of a child born in wedlock, states the same rule as follows: "This plaintiff must, therefore, be taken to be legitimate, unless it be proven by irrefutable evidence that the husband was impotent or did not have any sexual intercourse with his wife; but the former is not pretended, and the latter is a fact which neither the wife nor the declarations of the wife is admissible to prove. Rex v. Luffe, 8 East., 193.

The case turns upon the legitimacy of Charles Ewell. According to the established rule, when a child is born in wedlock it is presumed in law to be legitimate, and by the ancient common law this presumption could not be rebutted if the husband was capable of procreation and was within the four seas during the period of gestation; but this doctrine was exploded in the case of Pendrell v. Pendrell, 2 Str., 925, and gave way to the modern doctrine that the presumption may be rebutted by any competent and relevant evidence tending to satisfy the jury that sexual intercourse did not take place at any time when by the laws of nature the husband could have been the father of the child. Boykin v. Boykin, 70 N.C. 262; S. v. McDowell, 101 N.C. 734; 2 Greenleaf on Evidence, 130, 131; S. v. Pettaway 10 N.C. 623; Rhyne v. Hoffman, 59 N.C. 335; Woodward v. Blue, 107 N.C. 407; S. v. Liles, 134 N.C. 735; Banbury Peerage Case (H. of Lords), 1, Simm and Stuart, 153; 5 Cyc., 626. Our cases have stated the present rule in somewhat different language, but they substantially agree as to its terms and scope, as will be seen from the following extracts:

When a husband has actual access to his wife during the period of conception, the law conclusively presumes he has exercised that access and establishes the child as his absent proof that the wife was living in open and notorious adultery. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224 (1941); State v. Green, 210 N.C. 162, 185 S.E. 670 (1936); Rhyne v. Hoffman, 59 N.C. 335 (1862). Although this evidence should have been excluded, its admission was clearly favorable to the plaintiff.

453. In Rhyne v. Hoffman (1862), 59 N.C. 335, the court held that the presumption of legitimacy would stand unless it was proven by irresistible evidence that the husband did not have sexual intercourse with the wife at the time the child must have been begotten. And our Supreme Court, in Bailey v. Boyd (1877), 59 Ind. 292, held that where a woman was pregnant at the time of marriage and the fact of pregnancy was known to the husband at the time of marriage, he, where his rights alone were involved, was conclusively presumed to be the father of the child.