Small v. State
| Decision Date | 05 March 1948 |
| Docket Number | 28349. |
| Citation | 77 N.E.2d 578,226 Ind. 38 |
| Parties | SMALL v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Starke Circuit Court; Alvin T. Marsh Special judge.
Frank E. Martindale, of Plymouth, for appellant.
Cleon H. Foust, Atty. Gen., Frank E. Coughlin, 1st Asst. Atty Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee.
The appellant was charged by affidavit with failing to provide his minor son with the necessities of life in violation of § 10-1402, Burns' 1933.
The record discloses that the minor was born in 1934 to the prosecuting witness who was then unmarried; that the appellant was charged with being the father of the child in a proper proceeding prior to the birth of the child; that the appellant admitted the charge to be true but for some reason not disclosed the bastardy proceeding was dismissed; that some months after the dismissal of that proceeding the mother and the appellant were married and commenced to live together as husband and wife; and that the appellant again admitted his parentage of the minor child and assisted in securing a birth certificate for said child.
The record likewise discloses the commencement of a divorce proceeding and of a final divorce being granted to the mother; that in the finding and judgment of the divorce proceeding the minor was declared to be a child of the marriage, and the custody and control was awarded to the mother, while the appellant was ordered to pay $10 per week for the support of the child.
On appeal it is claimed that the evidence was insufficient to sustain the verdict. The basis of the claim is that since the child was born out of wedlock it was illegitimate and therefore a charge of failure to provide would not lie; that the putative father was liable only for such sums as might be fixed in a proceeding to test the question of parentage and since the bastardy action had been dismissed and the statute of limitations had run, there could be no conviction for failure to provide, because there was no duty to provide for the child.
There was evidence of the marriage of the appellant and the mother of the child. There also was evidence that he acknowledged the child to be his child. It is the law that where a marriage takes place between a man and a woman, who, at the time was the mother of a child born out of wedlock, and the man at that time or thereafter acknowledges the child as his own, the child thereby becomes legitimate regardless of whether or not the acknowledging father was in fact the father. Binns v. Dazey et al., 1897, 147 Ind. 536 44 N.E. 644; § 6-2310, Burns' 1933. Furthermore, the finding and judgment of the divorce proceeding were introduced in evidence without objection. In that action the legal parentage was determined, and when given in evidence it had probative value. From that evidence the jury could have determined that the appellant was the legal father if not the actual father of the child. While the evidence is not voluminous it is sufficient to sustain the verdict.
Instruction number six offered by the appellant was refused by the court. This instruction sets out the birth out of wedlock, the bastardy proceeding and its dismissal before judgment, the divorce proceeding, and the judgment entered therein. It then avers that the divorce judgment was of no force or effect in fixing parenthood and that if...
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