63 S.W.2d 480 | Ky. Ct. App. | 1933
Reversing.
Appellant was indicted for the offense of child desertion as denounced by section 331i-1 of the Kentucky Statutes, and sentenced to serve one year in the penitentiary. From that judgment he appeals.
The prosecuting witness, Cleta Hall Hibbard, testified that she and the appellant were married on the 8th day of July, 1932, and that the child claimed to have been deserted by appellant was born on the 6th day of October following. She testified positively that, although begotten before marriage, the child was appellant's, and that he had deserted her immediately after the marriage and had done nothing toward the support *432 of the child from its birth. This was all the testimony offered for the commonwealth.
The appellant then offered to testify that he was not the father of the child in question; that prior to his marriage with Cleta Hall Hibbard he had never had sexual intercourse with her and did not know that she was then pregnant; that immediately after his marriage he discovered that she was pregnant, and that thereupon he at once left her and had never lived with her, and that at no time had he ever had sexual intercourse with her; that at no time before or since the birth of the child in question had he recognized it as his own. The court, believing that the appellant by marrying Cleta Hall Hibbard had closed his mouth thereafter on the question of the paternity of any child born to his wife, refused to permit the appellant to testify as he offered to do. The case was then submitted to the jury with the result above noted.
The sole question presented for review is the propriety of the court's action in refusing to permit the appellant to testify as he offered to do.
Section 331i-1 of the Statutes makes it a felony for a parent of a child to leave, desert, or abandon it in destitute or indigent circumstances. The statute is confined to parents of children. See Commonwealth v. Ray,
"A child born in lawful wedlock is presumed to be legitimate no matter how soon the birth be after marriage, although this presumption may be overcome by proof that the father was incapable, on ground either of impotence or absence, of being father of the child, or where the child was begotten before but was born after marriage, by proof that *433 the husband did not or could not have begotten the child."
In the case of Sergent, etc., v. North Cumberland Mfg. Co.,
Judgment reversed for proceedings consistent with this opinion.