Franks v. State

• Decision Date: 14 May 1935
• Docket Number: 6 Div. 660
• Citation: 26 Ala.App. 430,161 So. 549
• Parties: FRANKS v. STATE.
• Court: Alabama Court of Appeals

161 So. 549

26 Ala.App. 430

FRANKS v. STATE.

6 Div. 660

Court of Appeals of Alabama

May 14, 1935

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

George Andrew Franks was convicted of failing to provide for support and maintenance of his infant child, and he appeals.

Reversed and remanded.

Frederick V. Wells, of Birmingham, for appellant.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

SAMFORD Judge.

The prosecution was begun by affidavit in the juvenile court of Jefferson county, and charged the defendant under section 4480 of the Code of 1923 with having failed to provide for his infant child, etc. The child was born to a married woman and while her husband was still living. But the testimony for the state tends to prove that the child was a bastard and that this defendant is its natural father. This being the case, whatever may have been the law relative to such cases prior to the adoption of the Code of 1923, if he is in fact the father of the child, and he fails to support such child, it being in necessitous circumstances, he is subject to prosecution under the above section. Patterson v. State, 23 Ala.App. 342, 127 So. 792.

The bill of exceptions fails to state that it contains all, or substantially all, of the evidence adduced on the trial, in the absence of which this court will presume a state of facts sufficient to justify the court's rulings on requested charges based upon a consideration of the evidence. So. Ry. Co. v. Wyley, 200 Ala. 14, 75 So. 326; 2 Ala. and So. Digest, Appeal and Error k 928(3). This precludes this court from passing on any charge based upon a consideration of the evidence. Fayet v. St. Louis & S.F.R. Co., 203 Ala. 3, 81 So. 671. The foregoing disposes of defendant's refused charges 1 and 25.

In the taking of the testimony, the court by its rulings limited the inquiry as to intercourse of prosecutrix with other men within a period of 9 months prior to the date of the birth of the child. In Kerzog's Work on Medical Jurisprudence, par. 956, it is definitely stated that the exact time of uterogestation can never be ascertained with certainty. He then goes on to give the reasons and the result of many scientific observations going to show that the time from the birth of the child to the time of coitus may vary from 260 to 301 days. Dr. Reid, an eminent specialist, writing on the subject, observes, that, in 500 cases under observation, in 283 cases the period of gestation was 280 days and in the remainder the time was longer than that. So that, in the investigation as to when the child involved in this case was begotten, the time should be extended to at least 301 days from the date of birth. The court made several rulings, and a number of statements before the jury confining the testimony tending to prove intercourse by complainant with other men to 9 months or 280 days from the birth of the child, and in these rulings he committed error.

The child in this case was born to the Chapman woman and admittedly conceived while she was legally the wife of Lenzie Chapman. It was shown without dispute that during December, January, and February, prior to the birth of the child in October, Lenzie Chapman was in Birmingham, and there was some evidence tending to prove that the husband was seen in and about the wife's apartment.

A child born in lawful wedlock is presumed to be legitimate until the contrary is properly proven by the party who denies legitimacy, and the burden rests upon the one interposing the denial. Sims v. Birden, 197 Ala. 690, 73 So. 379, 744; 7 Corpus Juris, 943(9)B. The defendant in this case is entitled to the benefit of the above presumption. In other words, the burden rests upon the state to prove beyond a reasonable doubt that the procreation by the husband was impossible, and, if it fall in this, the defendant here would be entitled to an acquittal.

Under the old common law, if the husband was shown to have been "within the four seas" within a stated period, and was capable of begetting issue, the wife's child was...