Richards v. State

• Decision Date: 02 February 1937
• Docket Number: 25833.
• Citation: 189 S.E. 682,55 Ga.App. 184
• Parties: RICHARDS v. STATE.
• Court: Georgia Court of Appeals

189 S.E. 682

55 Ga.App. 184

RICHARDS v. STATE.

No. 25833.

Court of Appeals of Georgia, First Division

February 2, 1937

Syllabus by Editorial Staff.

By plea of not guilty in criminal case of abandonment of minor child or of bastardy, husband may put in issue legitimacy of child and method of proving illegitimacy must be in accordance with rules of law.

Slighter proof is required to rebut presumption of legitimacy arising from marriage after antenuptial conception than in case of postnuptial conception.

Evidence that husband who was living at time of testimony told witnesses that child born during marriage was not his child held inadmissible to overcome presumption of legitimacy (Code 1933, § 74-101).

Error if any, in charge that if husband lived with wife after birth of child he acknowledged that it was his child, and was estopped from denying it, held not reversible where only testimony attacking legitimacy of child was in form of hearsay declarations which had no probative value.

Remarks of trial judge held not to authorize new trial where no objection was made and no ruling invoked relative thereto since propriety of such remarks cannot be raised for first time in motion for new trial.

Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.

Proceeding between the State and Howard Richards. To review the judgment, Howard Richards brings error.

Affirmed.

E. S. & James Loy Griffith, of Atlanta, for plaintiff in error.

Hal C. Hutchens, Sol. Gen., of Dallas, for the State.

Syllabus OPINION.

MacINTYRE Judge.

1. The testimony relative to the illegitimacy of the child showed that the husband and wife were married about five months before the birth of the child, lived together about six months, and then the husband left the wife, refused to support the minor child, and told two witnesses that the child was not his and he "wasn't going to keep up some child that wasn't his."

2. The defendant excepted to the following charge: "If he [the husband] lived with the mother after the birth of the child he thereby acknowledged that it was his child and is estopped from denying it." We do not think this charge is accurate, for the husband, by his plea of not guilty in a criminal case of abandonment of his minor child, or of bastardy, may put in issue the legitimacy of the child, and the method of proving illegitimacy must be in accordance with the rules of law. And even though "in questions of illegitimacy, in cases of ante-nuptial conception, slighter proof is required to rebut the presumption of legitimacy arising from subsequent marriage, than in cases of postnuptial conception," Wright v. Hicks, 15 Ga. 160, 161 (10), 60 Am.Dec. 687, yet, the testimony of the witness brought out by the solicitor general on cross-examination that the husband in...