State v. . HermanState v. . Herman
- Reporters:
- Before:
- Ruffin
Thе defendant was charged, as the father of a bastard child of Polly Payne. The warrаnt does not state, whether she was a single or married woman, but in her examination she swore, that she had been delivered of a bastard child, and that the defendant was the father of the child, and further, that, at the time the child was begotten, she was a single woman, but that shе has since married one Robert Payne — without stating whether the child was born before or after her marriage. Two Justices upon the examination of the woman bound the dеfendant to the County Court, and there he moved to quash the warrant and orders thereоn, upon the ground, that the child was not a bastard, but was born in wedlock *503 and legitimate. . In supрort of the motion the defendant gave evidence, that the child was born in May, five mоnths and two days after the marriage of the mother to Robert Payne, and that, for moi‘e than twelve months preceeding their marriage, the said Robert Payne and Polly resided in the same county in this State, and that, “ in the fall ” before the marriage, the said Robert аnd Polly staid all night at the same house. The Court, therefore, allowed the motion, and the attorney for the State appealed. In the Superior Court, the order on thе same state of facts was reversed, and the defendant appealed tо this court. The Court is of opinion, that the order ought to have been quashed. A child, born in wеdlock, though born wúthin a month or a day after marriage, is legitimate by presumption of law. Co. Lit. 244, a. And where a child is born during wedlock, of which the mother was visibly pregnant at the marriage, it is a presumption juris et de jure, that it was the offspring of the husband. 1 Phil. Ev. 463. Best on Presumption, 70. In Rex v. Luff, 8 East. 193, Mr. Justice Lаw‘kencb gives for the rule a good reason, that a man, who marries a woman, whom he knows to be in this situation, is to be considred as acknowledging, by a most solemn act, that thе child is his. But over and above that, there is a legal presumption here, that the child was actually begotten by the husband. If the parties had been married at the time of the сonception, it would be undoubtedly so, for they lived near each other and werе together about the time the child was be.gotten, and the rule seems now settled, that whеre there was opportunity for sexual intercourse between a man and his wife, it is рresumed that it did take place, unless the contrary be shown; and, if the intercourse might hаve occurred, at a time, when, by a course of nature, he might have been the fаther, the child is deemed his. Morris v. Davis, 3 Car. and Payne, 215, 378. If the case, therefore, were to *504 turn on the question of the actual paternity, upon the evidеnce given, without any denial of the husband’s access or suggestion of his impotency, it would be decided for the defendant; and there seems to be no difference in point of law between a case, where the conception was prior or posterior to the marriage, provided the birth be after wedlock, for that makes thе legitimacy. But, in the case under consideration, the Court never properly reached that point. For the magistrates do not even find the fact, that the child was born in wedlock, much less do they find the other facts necessary to establish the legal conclusion that the child, though born in wedlock, was a bastard, that is to say, the non-accеss or impotency of the man, who was married to the woman when she had the child. Thosе facts the woman was not competent to prove, (Luff’s case and State v. Wilson, 10 Ire. 131,) and she was the only witness examined. If, after she proved the adultery with the defendant, another witness had professed to prove those facts, the judgment of the Justices thereon would be cоnclusive, as to the truth of the matters thus proved, and, neither upon motion or certiorari, could their order be quashed. But it is perfectly certain, that the Justices could not have passed upon those questions, or, if they did, they proceeded on incompetent evidence, — that of the wife alone — and, therefore, as soon as it appеared that the child was born in wedlock, the case against the defendant was at аn end, for the present at least, for the want of legal evidence, that the child wаs a bastard and could be chargeable to the defendant, which is always the first inquiry in such a case. The judgment of the Superior Court must be reversed and that of the County Court affirmed.
Pee Cukiam. Judgment reversed.