299 Mass. 7 | Mass. | 1937
This complaint in a district court was heard on appeal in the Superior Court by a judge sitting without a jury. The complaint charged that the defendant did get one Georgianna Levesque with child, the child being now living and the defendant not then nor since being the husband of its mother. See G. L. (Ter. Ed.) c. 273, §§ 11-19. The defendant was found guilty and adjudicated the father of the child. The defendant’s exceptions present the questions (a) whether the evidence warranted the finding and (b) whether testimony of the mother was improperly admitted.
1. The finding was warranted by the evidence.
The child was born July 15, 1936. Its mother then, and for nearly seventeen years prior to that time, was married to a man other than the defendant. The evidence clearly warranted the finding of the judge, if. it was sufficient to overcome the so called presumption that a child born in wedlock is legitimate. It is, however, established in this Commonwealth that this presumption can be overcome only by proof that the husband of the mother was impotent — of which there is no evidence — or by proof that he had no access to her during the time when, according to the course of nature, he could be the father of the child. Hemmenway v. Towner, 1 Allen, 209. Phillips v. Allen, 2 Allen, 453. Taylor v. Whittier, 240 Mass. 514, 515. See Commonwealth v. Bird, 264 Mass. 485, 489. This rule has not .been changed by statute. It is not affected by the statutory provision under which the mother of a child, though a married woman, is competent to testify in a proceeding such as this to “relevant matters, including . . . the parentage
The judge could find legally that the presumption was overcome. The testimony of the mother of the child, the only witness to nonaccess, included testimony “that she has not seen or held any communication with her husband and was and is unaware of his whereabouts subsequently to September 14, 1935, up to the date of the trial.” Her testimony warranted, at least, a finding of nonaccess after September 14, 1935 — three hundred five days before the birth of the child. It appears in the record that the “normal period of gestation is two hundred eighty days,” but there is nothing in the record to show the frequency or extent of possible variation from the normal period. The judge, however, as the trier of fact, was entitled tó take into consideration with the evidence, without proof, facts which are matters of common knowledge relating to the operations of nature. Phillips v. Allen, 2 Allen, 453, 455. Negus v. Foote, 228 Mass. 375, 378. Wigmore, Evidence (2d ed.), § 2570. The possibility of some variation from the normal length of the period was recognized in Phillips v. Allen, 2 Allen, 453, 455, as being a matter of common knowledge. Doubtless the time to which the period possibly might
2. The exceptions to the admission of evidence must be overruled.
The defendant excepted to the “testimony of . . . the mother, tending to show that the child was illegitimate; that . . . the mother of the child, being a married woman, could not testify to any acts or facts tending to make illegitimate the child.” This exception presents the question of the competency of the mother, a married woman, to testify to facts relevant to the issue of illegitimacy. Whatever may have been the law apart from statute, under G. L. (Ter. Ed.) c. 273, §§ 7, 16, she was a competent witness to testify to such facts. Commonwealth v. Rosenblatt, 219 Mass. 197. Commonwealth v. Circo, 293 Mass. 361. The
The defendant also excepted specifically to the testimony of the mother, who, when asked “Who is the father of this child?” replied “The defendant, Joseph Kitchen.” This evidence was admissible for the purpose of identifying the defendant as the father of the child, if, on other and sufficient evidence, the presumption of legitimacy was overcome. See Commonwealth v. Rosenblatt, 219 Mass. 197; Commonwealth v. Circo, 293 Mass. 361. Its admission generally was not error, where, as here, the defendant did not ask to have its use limited to this purpose. Solomon v. Dabrowski, 295 Mass. 358, 359.
Exceptions overruled.