People ex rel. Dalman v. O'Malley

• Decision Date: 09 September 1963
• Docket Number: Gen. No. 48947
• Citation: 192 N.E.2d 589,43 Ill.App.2d 95
• Parties: PEOPLE of the State of Illinois ex rel. Virginia DALMAN, Plaintiffs-Appellants, v. Charles O'MALLEY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 589

192 N.E.2d 589

43 Ill.App.2d 95

PEOPLE of the State of Illinois ex rel. Virginia DALMAN Plaintiffs-Appellants, v. Charles O'MALLEY, Defendant-Appellee.

Gen. No. 48947.

Appellate Court of Illinois, First District, First Division.

Sept. 9, 1963.

Raymond L. Jones, Chicago, for appellants.

BURMAN, Justice.

Plaintiff appeals from a judgment order of the Municipal Court of Chicago finding the defendant not guilty in a proceeding brought under the Paternity Act, Illinois Revised Statutes, Chapter 106 3/4, Section 54. We have only the brief filed by plaintiff.

This proceeding was instituted upon the verified complaint of Virginia Dalman, an unmarried woman, charging that defendant, Charles O'Malley, was the father of her son, born out of wedlock on September 28, 1961. The defendant waived a trial by jury and the proceedings were heard by the trial court.

Virginia Dalman knew Charles O'Malley for about two years. They were invited guests at a house party given by a married couple in Rolling Meadows, Illinois, on December 26, 1960. During the course of the evening both plaintiff and defendant consumed intoxicating liquors to the extent that their hosts felt it would not be safe for them to drive home and they accepted an invitation to stay overnight. About midnight, after all the guests had left the party they were given pillows and blankets. The residence consisted of five rooms and the only sleeping space available to them was the living room. Plaintiff slept on the living room couch and defendant on the floor near the couch. The next morning they had breakfast with their hosts and left.

Plaintiff testified she had two acts of intercourse with defendant on the night of December 26, which was denied by defendant. She also testified that they had intercourse twice a month during the months of January, February and March of 1960, and that on two other occasions they had stayed overnight after parties given at the Rolling Meadows household. She further testified she did not have intercourse with anyone except defendant during the years 1960 and 1961 and there was no evidence to the contrary.

Defendant's testimony did not differ substantially from that of plaintiff, except that he denied the acts of intercourse during the night of December 26, 1960. On direct examination he admitted having intercourse with the complainant on several occasions, but denied it took place during the months of January, February or March, 1960. On cross examination however, he admitted having intercourse with her for the first time in January, 1960, the next time possibly in March or April and then in July of that year.

On January 16, 1961, the complainant met defendant after phoning him and informed him that she was pregnant. The defendant testified he did not admit then that he made her pregnant and that he always denied it. Some time later and after several discussions it was determined she was pregnant and defendant contacted some one to arrange an abortion, but the complainant, after agreeing, changed her mind. They discussed the matter of money and defendant testified he agreed to pay the doctor bills, but would pay no money for support.

A paternity proceeding in its nature has the appearance of a criminal prosecution, but in fact it is a civil proceeding, the main object being to compel the putative father to contribute to the support of his illegitimate child and to prevent the child from becoming a public charge. Scharf v. People, 134 Ill. 240, 24 N.E. 761.

The plaintiff contends that the judgment of the trial court is clearly and palpably against the manifest...