263 S.W. 291 | Tex. Crim. App. | 1924
Lead Opinion
Appellant is under conviction for deserting his infant child, with punishment assessed at a fine of $500 and imprisonment in the county jail for one year.
The child was only three days old. The facts show an aggravated case of desertion and justify the extreme penalty inflicted and the judgment should be affirmed, if no errors were committed calling for a reversal.
It is admitted that the child was born in July, and that the marriage between its mother and appellant occurred in March preceding. The child was normal and fully developed, showing that conception had occurred at the ordinary time preceding birth, the date of conception necessarily being at a time prior to the marriage. During the trial appellant offered to testify that he had known his wife and had gone with her for only about three months before their marriage; that he had never had any acts of intercourse with her prior to their marriage; that he was not the father of said child.
The evidence was excluded, the exception reserved. Was the court in error in this ruling. This is the main question. *631
When a woman gives birth to a fully developed child so soon after marriage as to render it certain that it was begotten before marriage the legal presumption is that it was begotten by him who became her husband until such presumption is overcome by some competent evidence to the contrary. This was announced by our Supreme Court in McCullouch v. McCullouch,
"The lips of parents, as a rule, are sealed on the questions of sexual intercourse so far as such testimony would go to assail the legitimacy of children. Whether there was such intercourse cannot be inquired of either the father or mother, either directly or by aid of circumstances from which the result could be inferred."
To the same effect see Underhill, § 799, (3d Ed.); Greenleaf, Vol. 2, paragraph 151 (7th Ed.); Simon v. State,
"Precisely the same rules of evidence obtain in such (prenuptial pregnancy) as when it is sought to prove that a child conceived during wedlock is not the offspring of the husband. Born in wedlock, the presumption of the legitimacy of the child obtains, even though this happen so soon after marriage as to render it certain that it was the result of coition prior thereto. . . . The rule, as we think, is founded on sound public policy, and being in accord with the current of authority should be adherred to. Declarations, as well as the evidence of either husband or wife as to access as nonaccess, are excluded whenever the issue of legitimacy is involved; and this includes cases of antenuptial conception."
The great weight of authority is with the rule as stated. Appellant frankly concedes this in his brief, and practically admits that the proffered evidence was properly excluded unless his contention is sound that the legislature abrogated the common law rule of evidence relative to the matter in a provision of the law upon wife and child desertion. Article 640c, P.C. reads:
"No other or greater evidence to prove the marriage of such husband and wife, or that the defendant is the father or mother of such child or children, shall be required than is or shall be required to *632 prove such facts as in a civil action. In no prosecution under this Act shall any existing statute prohibiting disclosures of confidential communications between husband and wife apply, to strictly relevant facts and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of such marriage, and the parentage of such child or children."
Appellant takes the position that the statute in question has the effect of modifying the rule and permitting him to give the excluded testimony. In this we are of opinion he is mistaken. The case of Beaver v. State,
The indictment avers that the christian name of the child alleged to have been deserted was to the grand jurors unknown. Appellant urges that the evidence upon the trial was not sufficient to *633 show proper diligence by the grand jury to ascertain the christian name of the infant. We have examined the statement of facts upon this point and are not in accord with appellant's contention. The child was only three days old. It is not shown it had a christian name at all. That the grand jury may have failed to ask either the father or mother the name of the child we would not regard as an indication of negligence on the part of the grand jury. The evidence discloses that both father and mother were under arrest upon this desertion charge. In good faith an inquiry could scarcely have been made of them relative to the matter.
The court instructed the jury if the child was born after the marriage of its mother to appellant that in law appellant was the parent and father of said child. Exception was reserved to this clause of the charge. It is argued that the presumption being rebuttable the charge given was erroneous in not so informing the jury. If there had been any competent evidence before the jury which might be considered as overcoming the presumption of law as to the legitimacy of the child the criticism of the charge would be well taken, but as we understand the facts this is not the case. The paternity of the child could not be attacked by appellant, either by his direct evidence or through his declarations relative thereto, and in the absence of any competent evidence upon the point under discussion we do not believe the charge in the instant case would call for a reversal.
It was not necessary for the court to define what was meant by the term "destitute and necessitous circumstances." It has been expressly held by this court that these are words of common use and meaning and do not ordinarily require any explanation or definition. Turner v. State, 84 Tex.Crim. Rep.,
Finding no error in the record which would demand a reversal, the judgment is affirmed.
Affirmed.
Addendum
Article 640c of the Penal Code contains this language:
". . . In no prosecution under this Act shall any existing statute prohibiting disclosures of confidential communications between husband and wife apply, to strictly relevant facts and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of such marriage, and the parentage of such child or children."
In Article 794 and 795 of the C.C.P., there were some modifications of this rule by statute. The common law rule, however, except in so far as modified by statutory enactments of this State, has been *634 made by Act of the Legislature a part of the law of this State. See R.S., Art. 3687; also Art. 5492, R.S. Whether the language in the article quoted (640c) is intended to change the common-law rule which declares that each spouse is incompetent to impeach the legitimacy of children born during wedlock is a matter upon which the appellant in his brief and motion for rehearing has displayed much research and ingenuity. It is one upon which it cannot be denied that a plausible argument can be made on either side. Inasmuch, however, as by virtue of the statute adopting the common law rule of evidence (Art. 3687), the inhibition against such impeachment of legitimacy is a part of the law of this State, it is believed that in the absence of some definite declaration by the Legislature which expressly or by necessary implication abrogates the rule, it must prevail. Such is the principle which has controlled this court in its original opinion, and upon the same consideration we are constrained to overrule the motion for rehearing.
Overruled.
[Rehearing denied June 18, 1924.]