State v. Bowman

• Citation: 52 S.E.2d 345,230 N.C. 203
• Decision Date: 30 March 1949
• Docket Number: 289
• Parties: STATE v. BOWMAN.
• Court: North Carolina Supreme Court

52 S.E.2d 345

230 N.C. 203

STATE v. BOWMAN.

No. 289

Supreme Court of North Carolina

March 30, 1949

Defendant is charged with violating G.S. s 49-2 by willfully refusing to support and maintain an illegitimate child begotten by him upon the body of the prosecutrix, Irene Roberts Tramel. It appeared on the trial that the mother of the child and one Wesley Tramel were married on July 17 1944, and that their marriage lasted until May, 1947, when it ended in divorce. The child involved in the case was born July 11, 1947. For the purpose of showing non-access of the husband when the child was begotten, the State offered the evidence of the prosecutrix to the effect that she had not lived with Wesley Tramel 'as man and wife' since October 28, 1944. The defendant reserved an exception to the ruling of the court admitting this testimony. The jury found the defendant guilty, and the court pronounced judgment against him on the verdict. He thereupon appealed, assigning error.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

W. H Strickland, of Lenoir, L. M. Abernethy, of Granite Falls, and John C. Stroupe, of Hickory, for defendant, appellant.

ERVIN Justice.

When conception occurs during the marriage of its mother, a child is presumed to be the legitimate offspring of the then husband of the mother, notwithstanding it is born after the termination of the marriage. Rhyne v. Hoffman, 59 N.C. 335. The presumption of legitimacy arising in such case is not conclusive, but may be rebutted by evidence which proves that the husband could not have been the father because he was impotent or did not have access to the mother at the time the child was begotten. Ray v. Ray, 219 N.C. 217, 13 S.E.2d 224; State v. Green, 210 N.C. 162, 185 S.E. 670; Ewell v. Ewell, 163 N.C. 233, 79 S.E. 509, Ann.Cas.1915B, 373; State v Rose, 75 N.C. 239. The evidence of nonaccess, however must come from third persons. This is true because under a wellestablished rule, which is said to be grounded on decency, morality and public policy, neither the husband nor the wife is competent to testify as to the non-access of the husband in a bastardy or other proceeding, where such testimony tends to bastardize or prove illegitimate a child of the wife either begotten or born during the existence of the marriage. Ray v. Ray, supra; State v. Green, supra; West v. Redmond, 171 N.C. 742, 88...