46 P. 185 (Kan.App. 1896), 262, Blush v. State

Docket Nº:262
Citation:46 P. 185, 4 Kan.App. 145
Opinion Judge:GILKESON, P. J.
Party Name:VAN R. BLUSH v. THE STATE OF KANSAS
Attorney:David Overmyer, for plaintiff in error. H. C. Safford, county attorney, and A. H. Case, for defendant in error.
Judge Panel:GILKESON, P. J. All the Judges concurring.
Case Date:June 01, 1896
Court:Court of Appeals of Kansas
 
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Page 185

46 P. 185 (Kan.App. 1896)

4 Kan.App. 145

VAN R. BLUSH

v.

THE STATE OF KANSAS

No. 262

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed September 9, 1896.

MEMORANDUM.-- Error from Shawnee district court; Z. T. HAZEN, judge. Action by The State of Kansas against. Van R. Blush to compel defendant to support an alleged illegitimate child. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed September 9, 1896, states the material facts.

Judgment reversed and cause remanded.

David Overmyer, for plaintiff in error.

H. C. Safford, county attorney, and A. H. Case, for defendant in error.

GILKESON, P. J. All the Judges concurring.

OPINION

[4 Kan.App. 146] GILKESON, P. J.

This was an action brought in the name of The State of Kansas, as plaintiff, against Van R. Blush, as defendant, to compel him to make certain provisions for the support of an alleged illegitimate child, the paternity of which was imputed to him by the mother of said child, one Laura A. Hunt. The prosecution was instituted before A. F. Chesney, a justice of the peace of the city of Topeka, on the 16th day of October, 1893. There are several errors assigned. We shall, however, consider only one, as upon it this case must be reversed.

Was Laura Hunt a single woman at the time she made this complaint? Paragraph 3252, General Statutes of 1889, provides: "When any unmarried woman who has been delivered of or is pregnant with a bastard child shall make a complaint. . . ." This section has been construed by the supreme court of this state to mean that, if the prosecuting witness was a single woman when she commences the prosecution, although she may have been married when the child was born, the proceeding may be prosecuted by the mother of such child. (Willetts v. Jeffries, 5 Kan. 470.)

The evidence in this case shows that at the time the child was born she was a married woman. Does not, then, the law presume, where it is once shown that a marriage relation exists, that it continues until [4 Kan.App. 147] it is proven to the contrary? We think so, and it is incumbent upon the state to prove every material fact and element necessary to constitute the offense before a conviction can be had. One of the material facts of this case to be proven by the state was that Laura A. Hunt, at the time she made this complaint, on the 16th day of October, 1893, was a single woman. The only testimony upon this proposition is that of the prosecutrix herself, in which she said that at the time of the birth she was a married woman, and then testified as follows:

Ques. Whom had you married? Ans. W. A. Hunt.

Q. At the time of the birth of the child, how long had you been married to him? A. From the 19th of October to the 9th of May the same year.

Q. 19th of October? Is that correct? A. 1892.

Q. The...

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