People v. Powers

Decision Date14 March 1950
Docket NumberGen. No. 44794
Citation340 Ill.App. 201,91 N.E.2d 637
PartiesPEOPLE v. POWERS.
CourtUnited States Appellate Court of Illinois

Edgar A. Jonas and Frederick C. Jonas, Chicago, for plaintiff in error.

John S. Boyle, State's Attorney, Chicago, John T. Gallagher, Francis McGuire, Asst. State's Attys., Chicago, of counsel, for defendant in error.

SCHWARTZ, Justice.

This writ of error is prosecuted by defendant, Clarence Powers, to reverse a judgment of the Municipal Court of Chicago which adjudged him guilty of the criminal offense of nonsupport of child, pursuant to information filed under chap. 68, sec. 24, Ill.Rev.Stat.1947, and ordered him to contribute $15 each week for a period of one year for such support. Defendant entered a plea of not guilty and, having waived a jury, the case was tried by the court without a jury.

Defendant was married to Grace Powers on August 30, 1941, and was still married to her on August 10, 1948, the date the child in question was born. On April 26, 1944, Grace Powers was adjudged to be mentally ill and committed to the State Hospital at Manteno. She was conditionally released on October 16, 1944; was absolutely discharged on June 24, 1947; recommitted on December 30, 1947, and conditionally discharged on July 28, 1948.

Defendant lived with his wife up to the time of her first commitment and resumed living with her when she was conditionally discharged on October 16, 1944, until, according to his testimony, June 20, 1946, when they were separated. At that time, they were living at 3104 Southport avenue, and according to the testimony of defendant, he moved out whem his wife's mother and sister moved in, and took up his residence after that in the 2100 block on Lincoln avenue, until March 24, 1947, when he moved to the Montrose Beach Hotel. The child in question was born to Grace Powers on August 10, 1948.

Defendant testified that he did not live with his wife during the months of October, November, and December, 1947, which months covered the possible period of conception. Defendant further testified that from the date of separation, June 20, 1946, until his wife was recommitted to Manteno on December 30, 1947, his wife came to his place of employment once a week to collect money from him for her support; that 'I saw her sometimes in the months of August, September, October, November and December, 1947, sometimes I did not * * * I would leave the money in the office and she would come and get it * * * During those months I saw her once or twice in the five months * * * I would see her at the place of business where I worked * * * she came for the purpose of collecting the money, that is all'; and that he did not have sexual intercourse with his wife during said months or at said times.

At the time of the trial, defendant's wife was not restored to reason and she did not testify. Of course, the child, the real party in interest, was likewise unable to do anything in his own behalf.

Defendant admits that there is a presumption that he is the father of the child, but asserts that this presumption is a rebuttable one and that the evidence is sufficient to meet it. Defendant cites Robinson v. Ruprecht, 191 Ill. 424, 61 N.E. 631, and People ex rel. Hood v. Gleason, 211 Ill.App. 380, in support of this proposition. There is no doubt that the presumption in question is not absolutely conclusive In the law, there are presumptions which are conclusive, some which disappear on the presentation of any evidence to the contrary and others that can only be overcome by strong and compelling evidence. The presumption in question still has great force and vigor, even though the practically conclusive character it has at common law has been somewhat abated. It has its origin in the need for family stability and the protection of helpless infants, who by such proceedings as this can be tarred forever with the stigma of illegitimacy.

Although the facts in Orthwein v. Thomas et al., 127 Ill. 554, 21 N.E. 430, 432, 4 L.R.A. 434, 11 Am.St.Rep. 159, are different from those in this case, the public policy of this state is clearly stated in the following quotation: 'The presumption and charity of the law are in his [the child's] favor, and those who wish to bastardize him must make out the fact by clear and irrefragable proof; that the presumption of law is not lightly to be repelled; it is not to be lightly broken in upon or shaken by a mere balance of probabilities; the evidence for repelling it must be strong, satisfactory, and conclusive.'

The Robinson case, supra, cited by defendant, was a civil suit wherein it appears that...

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11 cases
  • Kowalski v. Wojtkowski, A
    • United States
    • New Jersey Supreme Court
    • June 27, 1955
    ...State, 122 Ga. 393, 50 S.E. 145 (Sup.Ct.1905); Pursley v. Hisch, 119 Ind.App. 232, 85 N.E.2d 270 (App.Ct.1949); People v. Powers, 340 Ill.App. 201, 91 N.E.2d 637 (App.Ct.1950); Bowers v. Bailey, 237 Iowa 295, 21 N.W.2d 773 (Sup.Ct.1946); Bethany Hospital Co. v. Hale, 64 Kan. 367, 67 P. 848 ......
  • Happel v. Mecklenburger
    • United States
    • United States Appellate Court of Illinois
    • October 8, 1981
    ...186, 242 N.E.2d 275, 276; People ex rel. Gonzalez v. Monroe (1963), 43 Ill.App.2d 1, 7, 192 N.E.2d 691, 693; People v. Powers (1950), 340 Ill.App. 201, 203, 91 N.E.2d 637, 638. The presumption, however, is not conclusive; it may be rebutted by clear and convincing evidence. (People ex rel. ......
  • Dayhoff v. State
    • United States
    • Maryland Court of Appeals
    • December 15, 1954
    ...held that the defendant was the father of the two children, was not admissible in evidence in the non-support case. The case of People v. Powers, supra, involved the charge of non-support of a child. The defendant testified that he did not live with his wife during the period of conception ......
  • People v. Askew
    • United States
    • United States Appellate Court of Illinois
    • July 31, 1979
    ...occurs prior to marriage, and it does not hold that the presumption of legitimacy is a conclusive one. In People v. Powers (1st Dist. 1950), 340 Ill.App. 201, 91 N.E.2d 637, defendant's only defense in the criminal action was that he was not the father of his wife's child. Defendant testifi......
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