Miller v. Anderson

• Decision Date: 03 November 1885
• Citation: 43 Ohio St. 473,3 N.E. 605
• Parties: MILLER v. ANDERSON.
• Court: Ohio Supreme Court

43 Ohio St. 473

3 N.E. 605

MILLER

v.ANDERSON.

Supreme Court of Ohio.

Filed November 3, 1885.

Error to district court, Jefferson county.

On the seventh day of June, 1881, Emiline Miller made a complaint in bastardy against James M. Anderson, the defendant, before a justice of the peace, alleging that on the tenth day of November, 1865, she had been delivered of a bastard child, and that defendant was the father of the child. On this complaint, and an answer denying its truth, a trial was had in the court of common pleas, at the November term, 1882, which resulted in a verdict and judgment in favor of complainant. A motion for a new trial was made by defendant, and overruled by the court, and a bill of exceptions taken, setting out all the evidence. The case was taken on error to the district court, and on a hearing the judgment of the common pleas was reversed, and the complaint ordered to be dismissed, and the complainant now assigns for error the judgment of reversal.

The only evidence offered on the trial was the testimony of the complainant and defendant, the former affirming, and the latter denying, that defendant was the father of the child. From the testimony of the complainant it appeared that the child was born on the tenth day of November, 1865, and, about six months after the child was begotten, and while enceinte, she was married to a man by the name of Riddlemoser; that he married her with full knowledge of her condition of pregnancy, and continued to live with her as her husband till his death, which occurred two and a half years afterwards. The child was born at the house of Riddlemoser and complainant, and lived with them during their joint lives, and during their cohabitation the complainant had another child by Riddlemoser. It also appeared that for years before the marriage of complainant and Riddlemoser, the latter lived in the same neighborhood, and within a mile and a half of complainant. She testified she barely knew Riddlemoser by sight, and that he had never had access to her before marriage, and that Anderson was the father of the child. The complainant was the sole witness to support her case; and when she rested, the defendant moved the court to dismiss the complaint, and withdraw the case from the jury, on the ground that upon the testimony no case was made against the defendant; but the court overruled the motion, and defendant excepted.

[Ohio St. 475]

Andrews & Erskine

and John M. Cook, for plaintiff in error.

Trainor & Son, for defendant in error.

ATHERTON, J.

The question presented by this record is whether, under the state of facts disclosed, Anderson can be held as the putative father of this child, and be required to contribute to its support, under the bastardy statutes of Ohio; or whether Riddlemoser, having married the complainant with full knowledge of her condition, is alone liable for its support. The Revised Statutes provide:

Sec. 5614. ‘When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes complaint thereof, in writing, under oath, before any justice of the peace, charging a person with being the father of such child, the justice shall thereupon issue his warrant,’ etc.

Can the child in this case, in legal contemplation, be regarded as a bastard? Blackstone, under the inquiry, ‘Who are bastards?’ says: ‘A bastard, by our English laws, is one that is not only begotten, but born, out of lawful matrimony.’ 1 Bl. 454.

And Kent also defines illegitimate children [Ohio St. 476]or bastards as ‘being persons who are begotten and born out of lawful wedlock.’ 2 Kent. 208.

In Best on Presumptions, in discussing presumptions of legitimacy, the author says:

‘One of the strongest illustrations of this principle (although resting in some degree on grounds of public policy) is the presumption in favor of the legitimacy of children. * * * Thus it is said to be a presumption, juris et de jure, that a child born during wedlock, and of which the mother was visibly pregnant at the time of marriage, must be taken to be the offspring of the husband.’ Best on Presumptions, 70.

The supreme court of Iowa, in the case of State v. Romaine, 58 Iowa, 48, S. C. 11 N. W. Rep. 721, lays down the rule that ‘if a woman be pregnant at the time of the marriage, and if the pregnancy be known to the husband, he should be conclusively presumed to be the father.’

In North Carolina the supreme court held that--

‘A child born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law; and where the mother was visibly pregnant at the marriage, it is a presumption juris et de jure that the child was the offspring of the husband.’

And in Rhyne v. Hoffman, 6 Jones, Eq. 335, the court quote with approval a quotation from 1 Rolls, Abr. 358, and 2 Bac. Abr. 84, as follows: ‘That if a woman, big with child by A., marry B., and then the child be born, it is the legitimate child of B.’ It has been held in a large number of cases, both in England and America, that the wife is not a competent witness to prove non-access of the husband, whether the child was begotten before or after marriage. In Rex v. Reading, Lee Temp. Hardw. 83, Lord HARDWICKE said:

‘It must be of very dangerous consequence to lay it down in general that a wife should be a sufficient sole evidence to bastardize her child, and to discharge her husband of the burden of its maintenance.’

Similar language is used by Lord ELLENBOROUGH in [Ohio St. 477]King v. Luffe, 8 East, 193, and in various English authorities. The reason for this rule is stated in Tioga Co. v. South Creek Tp., 75 Pa. St. 433, in the following language:

‘That issue born in wedlock, though begotten before, is presumptively legitimate, is an axiom of law so well established that to cite authorities in support of it would be mere waste of time. So the rule that the parents will not be permitted to prove non-access for the purpose of bastardizing such issue, is just as well settled. Many reasons have been given for this rule. Prominent among them is the idea that the admission of such testimony would be unseemly and scandalous, and this not so much from the fact that it reveals immoral conduct upon the part of the parents as because of the effect it may have upon the child, who is in no fault, but who must, nevertheless, be the chief sufferer thereby. That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency, and hence the rule of law that forbids it.’

This doctrine is recognized in Parker v. Way, 15 N. H. 45;Davis v. Houston, 2 Yeates, 289;Page v. Dennison, 1 Grant, Cas. 377; S. C. 29 Pa. St. 420, and in that case the court, in addition, hold that--

‘Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and can only be bastardized by proof of non-access. The wife is not a competent witness to prove non-access on the part of her husband, and that her child, begotten before, but born during, wedlock, was not begotten by him.’

On the same point, see State v. Wilson, 10 Ired. 131, and State v. Herman, 13 Ired. 502, in both of which cases the pregnancy preceded the...