145 N.E. 895 | Ind. Ct. App. | 1925
Complaint, in bastardy filed November 30, 1923. The child in question was born February 14, 1922, the relatrix being at that time the wife of Clarence Hathcock, whom she married October 15, 1921. The relatrix and her husband ever since that time have lived together as husband and wife. Clarence Hathcock knew the relatrix was pregnant when he married her. The child at birth was fully developed and ever since its birth has lived with the relatrix and her husband, the latter being present at its birth and having at all times given it the same care and attention he would have given it if it had been begotten by him and born in wedlock. The relatrix and her husband had known each other for ten years prior to their marriage and for six or seven years next preceding their marriage had been keeping company with each other, he calling on her at her home two or three times a week. From sometime in March, 1921, at a time when her husband's mother was sick and confined to her bed, the relatrix did the housework for and took care of the mother, with whom the son, Clarence, was then living. There is no evidence that the relatrix and her husband did or did not have illicit relations with each other prior to marriage. Nor is there any evidence tending to negative the existence of their having had sexual intercourse with each other unless it be the statement of the relatrix when she was asked what he said when she told him she was pregnant. After having testified that ten days or two weeks before their marriage, she told her husband of her condition, she, in response to a question asking what he said at that time, replied by *358 saying that he said it was impossible unless she had been with someone else as he was not guilty of anything of that kind. This conversation took place after they were engaged to be married. On the preliminary hearing before the justice of the peace, she testified that when she told him of her condition, he said: "We are already engaged to get married and I will marry you." She also testified that prior to November, 1923, she and her husband never had any talk or conversation concerning the paternity of the child, and that, prior to that time, she never told anyone who the father of the child was. The day after its birth, the child was named Vivian Hathcock, and, a few days later, the attending physician made out and filed a birth certificate giving the name of the child, the date of birth, stating it was of legitimate birth and that its father was Clarence Hathcock and giving his age and place of birth as well as the age and place of birth of the mother.
The relatrix testified that she had sexual intercourse with appellant about the middle of June, 1921, and again on June 30, 1921, that the child was begotten on the last date and that appellant was its father. Appellant denied having had intercourse with the relatrix, and he is corroborated in his denial of having had intercourse with her at the times and places named by her.
Appellant having been adjudged the father of the child, appeals and insists that the evidence is not sufficient to sustain the verdict.
It is a well-established rule of law that a man who marries a pregnant woman is presumed to be the father of the child, and this presumption is one of the strongest presumptions known 1. to the law. It is a presumption both of law and fact. This presumption, however, may be rebutted. In State v.Romaine (1882),
And the same court in State v. Shoemaker (1883),
In Wallace v. Wallace (1908),
In Dennison v. Page (1857),
In Stegall v. Stegall (1825), 2 Brock. 256, Chief Justice Marshall, said: "This presumption of law may be rebutted by testimony which places the negative beyond all reasonable doubt." The same rule was announced in Phillips v. Allen (1861), 2 Allen (Mass.) 453.
In Rhyne v. Hoffman (1862),
And in Mayer v. Davis (1907), 103 N.Y. Supp. 943, 945,
The burden was not only upon the State in the instant case to prove that appellant had had intercourse with the relatrix at a time when he might have become the father of her child, but 2. it had the burden of proving that her husband did not have access to her at a time when he might have become the father of the child. And this is true, even though it requires the State to prove a negative. Boulden v. McIntire (1889),
In the instant case, the relatrix admittedly kept company with her husband for a period of seven years before their marriage; that he had access to her during all that time and that 3. their relations were intimate. She does not even deny the existence of sexual relations between herself and husband at any time during this period. She asked the court and jury, however, without any evidence on that subject to infer that no such relations existed, though she was willing to admit shameful relations with another, and thus to place the badge of dishonor upon her offspring. There was no competent evidence negativing the existence of sexual relations between the husband and relatrix. The court will therefore assume the existence of the relation, since it is "not inconsistent with the facts proved."
Many of the authorities hold that where a man marries a woman known by him to be pregnant, he is conclusively presumed to be the father of the child, some of them hold that such 4. presumption can be overthrown only by evidence that is clear, convincing and irrefragable. It is not necessary, however, that we determine in the instant case the quantum or *363 character of evidence necessary to overcome the presumption that the child in question is the child of the husband. But we do hold that there is no competent evidence in the record even tending to prove that he did not have access to the relatrix at a time when, in the course of nature, the child might have been begotten, and, therefore, that the evidence is not sufficient to rebut the presumption of legitimacy.
Judgment reversed, with directions to sustain the motion for a new trial.