Powell v. State

Decision Date09 May 1911
Docket Number11816
Citation84 Ohio St. 165,95 N.E. 660
PartiesPowell v. The State, Ex Rel. Fowler
CourtOhio Supreme Court

Every child begotten in lawful wedlock - Presumed legitimate - Evidence required to prove such child bastard.

1. Every child begotten in lawful wedlock is presumed in law to be legitimate.

2. Before such child can be adjudged a bastard the proof must be clear, certain and conclusive, either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child.

Mollie Fowler was married to Karl Koch on the 8th day of March 1898, and was divorced from him on the 15th day of September 1904. No entry of the decree of divorce was put upon the records of the court until some two years later, when a decree nunc pro tunc was entered. Sometime later she married a man named Jaycox, but the evidence does not disclose the date of this marriage. On the 7th day of January, 1907, she filed with a justice of the peace an affidavit in which she stated that she was then an unmarried woman, a resident of Montgomery township, Franklin county, Ohio; that on the 12th day of January, 1905, she was delivered of a bastard child and that John V. Powell was the father of such child. In her examination before the magistrate on the hearing of said charge she testified that she was an unmarried woman. On cross-examination she testified that she was married to Karl W. Koch on the 7th day of March, 1898; that she was divorced from him, but did not give the date of the divorce; that she had separated from him on the 22nd day of February, 1904; that she saw him last on the 21st day of July, 1904, and that her child was born on the 12th of January, 1905. On the trial of the case in the common pleas court she testified that she had separated from her husband several times before this final separation, and during each of these separations she sustained illicit relations with the defendant Powell, and then would return to her husband for short intervals and again leave him and renew her adulterous relations with Powell; that the final separation occurred on the 22nd of February, 1904, after which time she continued to live with Powell pending her proceedings for divorce from her husband; that she became pregnant on the 3rd day of April 1904, and that the defendant, John V. Powell, was the father of her child, and she denies that she ever had any sexual relation with her husband after the final separation. It appears from the evidence that Karl Koch resided in Columbus at least up until July 21, 1904. There is some evidence tending to show that he did leave Columbus shortly after that date, but that is not clear. Her evidence is corroborated as to the fact that Powell called upon her at the different places where she was living after her separation from her husband, but she is wholly uncorroborated as to whether or not she had sexual relation with her husband after February 22, 1904. It was admitted that two witnesses who were offered by the defense would testify that she had told them that her husband was the father of this child. Another witness did testify that she asked her if she did not think the child resembled its father, Karl Koch. This affidavit in bastardy was not filed until about two years after the birth of the child and about the time she received information that the defendant Powell was to be married to another woman.

The jury returned a verdict finding the defendant guilty, a motion for new trial was overruled and the defendant was adjudged the putative father of the relator's child, and adjudged to stand charged with the maintenance of the child in a sum fixed by the court, payable at certain intervals. The circuit court affirmed this judgment of the common pleas court and this proceeding in error is prosecuted to reverse the judgment of both courts.


Mr. Claude L. Brewer, for plaintiff in error, cited and commented upon the following authorities:

Schaffer v. Mueller, 8 Dec. R., 751; Miller v. Anderson, 43 Ohio St. 473; Haworth v. Gill, 30 Ohio St. 627.

Mr. Fred S. Hatch and Mr. James A. Miles, for defendant in error, cited and commented upon the following authorities:

Devinney v. State, Wright, 564; Johnson v. State, 55 Neb. 781; State v. Lavin, 80 Ia. 555; Miller v. Anderson, 43 Ohio St. 473; Haworth v. Gill, 30 Ohio St. 627; Roth v. Jacobs, 21 Ohio St. 646; Law v. Albert, 8 O. C. D., 784, 62 Ohio St. 649; Crow v. Jordon, 49 Ohio St. 655; Gilmanton v. Ham, 38 N. H., 108; Woodward v. Blue, 107 N. Car., 407; Schaffer v. Mueller, 8 Dec. R., 751; 5 Cyc., 629, 630; Howes v. Draeger, 23 Ch. Div., 173; Marr v. Marr, 3 U. C. C. P., 36; In re Jessup, 81 Cal. 408; Shorten v. Judd, 56 Kans., 43; Pendrell v. Pendrell, 2 Str., 925; State v. McDowell, 101 N. Car., 734; Wright v. Hicks, 15 Ga. 160.


Section 5614, Revised Statutes (Section 12110, General Code) provides that when an unmarried woman who has been delivered of or is pregnant with a bastard child makes complaint thereof in writing under oath before any justice of the peace charging a person with being the father of such child, the justice shall issue his warrant for the arrest of the person so charged. The statute uses the word "bastard" but does not define it; therefore, the common law definition of bastard is the proper meaning to be given to that word as used in this statute. The common law definition of bastard is one that is begotten and born out of lawful matrimony. 1 Blackstone Commentaries, 454; 2 Kent, 208. This definition is now subject to some modification, but a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate, and before it can be found to be a bastard the proof must be clear and convincing. In England unless...

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