Blush v. State
| Decision Date | 01 June 1896 |
| Docket Number | 262 |
| Parties | VAN R. BLUSH v. THE STATE OF KANSAS |
| Court | Kansas Court of Appeals |
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.
OPINION
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 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 child was born March 9, 1892? A. Yes, sir; I was married in 1891.
Q. You were married in October before that? A. The 19th of October, 1891.
Q. Prior to that date had you been married? A. No, sir.
Q. Had you ever been married prior to the time you married Hunt? A. Yes, sir; my first husband was dead.
Q. What had become of your first husband? A. He was dead.
Q. When did he die? A. He died in October.
Q. What year? A. Two years before that; I cannot call the year.
Q. Two years before you married Hunt? A. Yes, sir.
Q. On the 16th day of October last, and now state whether you were a married woman or single. A. Single.
Upon cross-examination she stated:
Q. You say the child was born on what day of the month? A. 9th of March, 1892.
Q. You say at that time you were married to Hunt? A. Yes, sir.
Q. Got married October before? A. Yes, sir; but I did not live with him.
Q. But you had been married to him the October before? A. I did slot live with him at all.
Q. You were married to him? A. Yes, sir.
Q. You have so stated, I believe? A. Yes, sir.
Q. Then you stated that in last October, when you brought this action, you was a single woman? A. Yes, sir.
Q. How did that come? A. I obtained a divorce from Mr. Hunt.
Q. Where? A. In this court.
Q. You obtained a divorce in October last? A. Yes, sir.
Q. Do you remember the day in October it was granted? A. No, sir, I do not exactly.
Q. The 15th? A. I do not remember the date.
Q. What is your best impression as to the date? I see this was filed October 16. A. I think it was near that.
Q. It was about there, was it, before you filed this, that you got your divorce here? A. Yes, sir, a few days, I suppose; I cannot state just exactly.
Q. What is your best recollection? A. I will tell you as near as I know. I cannot tell you. I know I got the divorce somewhere near the middle of October.
Q. That is, you got your divorce? A. Yes, sir.
Q. You know it was in the month of October? A. Yes, sir.
Paragraph 4757 () reads as follows:
Paragraph 4759 (§ 647b, Code) provides:
"Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time."
Conceding that her testimony was sufficient to establish the fact that she had obtained a decree of divorce, it is clearly shown by the testimony that, within two or three days after it was granted, she commenced this action. She says that she was divorced in the middle of October. Now, giving all the latitude that is possible to be given to what is meant by the term, "about the middle of October," it would only include a range from the 10th to the 20th of the month. Either of these dates would constitute the middle of the month. But it must, from her testimony, have been prior to the 16th, and at the utmost limit not over six days before she instituted this action. But did the mere decree of divorce make her a single woman? We think not. Our statute expressly declares that the decree does not become absolute or take effect until the expiration of six months from the date of its rendition. It not only makes it unlawful for the parties to marry during that time, but declares that a marriage so contracted shall be absolutely void. During that six months, therefore, neither party to the decree of divorce is an unmarried...
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