Clark v. State

Decision Date14 November 1955
Docket NumberNo. 29,29
Citation118 A.2d 366,208 Md. 316,57 A.L.R.2d 718
Parties, 57 A.L.R.2d 718 Ronald CLARK v. STATE of Maryland.
CourtMaryland Court of Appeals

William J. O'Donnell, Baltimore, for appellant.

David Kauffman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., and James W. Murphy, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant was convicted of bastardy--of being the father of a child conceived before, but born after the marriage of the mother to another. The trial was before the court without a jury. At the first hearing in February, 1954, objection was made to the mother's competency to testify as to nonaccess by her husband. The court held the matter sub curia and in August sent counsel an opinion in which he held that neither the husband nor the wife would be permitted to testify as to nonaccess of the husband. That opinion was not formally filed, the court in the meantime having decided that he would hear the case and take the protested evidence subject to exception. This he did in Decembar and at the conclusion of the State's case, refused the appellant's motion for a directed verdict, kept in the evidence subject to exception and invited the appellant to proceed with his defense. The invitation was declined and the appellant rested. The court took the matter under advisement until March, 1955, when he announced his conclusions as follows: 'The question involved is whether the so-called Lord Mansfield rule, which requires proof of non-access between husband and wife in order to overcome the presumption of legitimacy with reference to a child born during wedlock, is applicable where conception occurred before marriage. I have concluded that the rule is not applicable and that, even if it is, non-access has been satisfactorily established.'

The appellant's main points are: (1) that in adulterine bastardy, whether the conception be ante-nuptial or post-nuptial, there is a presumption of legitimacy that the Lord Mansfield rule will not permit to be overcome by testimony of the mother that there was no access by her husband; and (2) that apart from the testimony of the mother, there was not enough evidence to permit a finding of nonaccess which had to be found before the mother could testify that she had had relations with the appellant and that he was the father of her child. The State urges that the Lord Mansfield rule should not be extended to cases of ante-nuptial conception and that even if it be held applicable here, there was other evidence of nonaccess which, together with the supporting evidence properly admitted after nonaccess was so shown, justified the verdict of guilty.

Two separate, although related, questions must be answered in resolving the conflict. First, does the general presumption that a child born when the mother is married is the child of the husband arise when the conception was ante-nuptial, and second, if so, what evidence is admissible and sufficient to rebut the presumption?

The cases, in England and in this country, agree uniformly that if conception and birth both occur during wedlock, there is a very strong presumption that the child is legitimate, but that the presumption may be rebutted by proper evidence. When a man marries a woman, knowing her to be pregnant and a child is born after the marriage, there is a similar presumption that he is the father. This, too, is the English rule and the American. In The Law of Illegitimacy, Hooper, Chap. 2, Adulterine Bastardy, p. 186, the author says of the English law: 'A child conceived before but born after marriage is presumed to be legitimate if the husband at the time of the marriage knew, or had reason to suspect, that his wife (the mother of the child) was pregnant; on the principle that by marrying with knowledge of her condition he admits his paternity. * * * The presumption so arising can be rebutted by evidence which satisfies the judge or jury that the husband did not have sexual intercourse with the woman, who afterwards became his wife, at the period of conception * * *.' See Rex v. Luffe (1807), 8 East 193, 198; Gardner v. Gardner (1877), 2 A.C. 723; Halsbury's Laws of England (1931 Ed.) 'Bastardy & Legitimation', Sec. 769. In this country some of the early cases went so far as to make the presumption irrebuttable. Bishop 'Marriage, Divorce and Separation', Vol. 1, Sec. 491, says in effect that if the man could not obtain a divorce for fraud, there exists a presumption that the child is his. Both the presumption and the right to rebut it are recognized and applied as the law in the majority of the States. Some of the cases are collected in the notes below. In Note 1 are cited those in which both the presumption and the Lord Mansfield rule are applicable, and in Note 2 are cited those in which the presumption was held to arise but the rule was not applicable, either by statute or because it was not the law of that State. See slso 7 Am.Jur., Bastards, Sec. 16; 10 C.J.S., Bastards, § 3b, p. 22; and 8 A.L.R. 428.

We turn to the character and strength of the evidence necessary to rebut the presumption. When both conception and birth occur after marriage, the Lord Mansfield rule will not permit either husband or wife to prove nonaccess at the critical dates, and neither they nor the paramour can give testimony that will bastardize the child until nonaccess be shown otherwise. If it is so shown, either husband or wife can testify as to any other relevant fact (even though it will bastardize the child), such as intercourse of the wife with another man and the identity of the real father. Hale v. State, 175 Md. 319, 2 A.2d 17. The rule is firmly established in Maryland. Dayhoff v. State, 206 Md. 25, 109 A.2d 760; and its history, general and local, is discussed in Hall v. State, 176 Md. 488, 494, 5 A.2d 916.

In 1777, Lord Mansfield was inspired--apparently by some brooding omnipresence in the sky--to declare that 'decency, morality and policy' required the law to be that a couple, after the birth of a child in wedlock, would not be heard to say that they have had no connection and their offspring is spurious. Both before 1777 and from then until 1903, it seems to have been accepted in England that the same character of evidence would be received to rebut the presumption of legitimacy in ante-nuptial conception as in post-nuptial conception. Wigmore on Evidence, Third Edition, Vol. 7, Sec. 2063. Cases of both kinds, before and after 1777, are cited in the Notes. It was expressly so held in Anon. v. Anon., 23 Beav. 273. (Indeed, in Goodright v. Moss, 2 Cowpers 591, 98 English Reprints 1258, the case which established the rule, the very close question was whether the child had been born just before or just after the marriage.) In 1903 the Poulett Peerage Case, A.C. 395, was decided. In that case there had been no intercourse between the couple before marriage and the husband was in complete ignorance that his wife then was pregnant, a fact that soon after marriage she admitted frankly. After her death, he told of these facts in a proceeding to perpetuate testimony. In a suit to establish claim to title, after his death, it was held that his testimony and her statements were admissible. The Poulett Peerage Case was held to control in the cases of McLean v. McLean (1931), N.Z.L.R. 167, and In re Duckworth and Skinkle (1924), 55 Ont.L.Rep. 272. In the McLean case, the approval of the case would seem to have been dictum.

The Poulett Peerage Case cited no authority for its conclusion--it merely announced in certainties as Jovian as those of Lord Mansfield that the law was so. On the facts, there was held only that where there had been no intercourse and no knowledge of pregnancy before marriage, the husband could say so. It would seem that in such case, there arises no presumption of legitimacy to be protected, and the effect of the case should be correspondingly limited. The Law of Illegitimacy, supra, says at p. 188: 'It would seem that no presumption of legitimacy arises in the absence of any evidence to show that the husband married with a knowledge that his wife was in the family way. (The reasons in support of this view are well expressed by Geary: Marriage and Family Relations, p. 159; cf. Bishop: Marriage and Divorce, sect. 187). There is certainly no presumption that the parties have misconducted themselves before marriage (The Poulett Peerage, 19 T.L.R. 646, per Lord Robertson).' The Delaware case of Morris v. Morris, 1 Terry 480, 13 A.2d 603, draws the distinction between situations where there is premarital intercourse or knowledge of pregnancy and where there is not; saying, that, where there is, the presumption arises and the Lord Mansfield rule, where it has found favor, is applied, but that where there is not, the Poulett rule should control because in such case, to raise a presumption would amount to consecrating 'an utterly false supposition'. The opinion suggests that the distinction underlies the established principle that a deceived husband may have a dissolution of the marriage for fraud. As we have noted, Bishop draws the same distinction. So, too, does the Ohio case of Miller v. Anderson, 43 Ohio St. 473, 3 N.E. 605 (supra, Note 3)--in which the Court distinguished an earlier case where it was not shown that the husband knew of the pregnancy at the time of the marriage. In Baker v. Baker, 13 Cal. 87 (supra, Note 2), the Court held that where a man marries a woman with child, the law presumes the child is his but the presumption is based on the assumption that he knew of her situation and, if he did not, there is no presumption. Cf. Behr v. Behr, 181 Md. 422, 30 A.2d 750; and see 7 Md. Law Review 238.

The State would seem to overstate the proposition when it says that to apply the Lord Mansfield rule to the facts of ...

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