State v. Romaine

• Decision Date: 05 April 1882
• Citation: 58 Iowa 46,11 N.W. 721
• Parties: STATE OF IOWA v. ROMAINE.
• Court: Iowa Supreme Court

58 Iowa 46

11 N.W. 721

STATE OF IOWA

v.ROMAINE.

Supreme Court of Iowa.

Filed April 5, 1882.

Appeal from Cedar district court.

This is a proceeding under the statute to charge the defendant with the maintenance of an illegitimate child, of which it is alleged he is the father. There was an answer in denial, and an averment that the complainant had made provision for the support and maintenance of the child by legal articles of adoption. There was a trial by jury and a verdict of guilty, and judgment thereon, from which defendant appeals.Piatt & Carr, for appellant.

Smith McPherson, Atty. Gen., for the State.

ROTHROCK. J.

1. It appears that Annie Swart, the mother of the child, was married to Henry Swart on the nineteenth of February, 1880. The child in question was born on the thirteenth of May following. The defendant is the husband of the sister of the complainant, and at the time the child was begotten complainant was a member of the defendant's family.

The defendant requested the court to instruct the jury to the effect that the child was not illegitimate, for the reason that it was born in wedlock, and that a child is not a bastard unless begotten and born out of wedlock. The instruction was refused, and the court instructed the jury that as the child was born in wedlock the law presumed it to be legitimate, and the burden was on the state to show that it was begotten by the defendant, and not by the husband of the complainant. There was also the further instruction that if the condition of the complainant was such at the time of her marriage as to lead her husband to suppose she was in a state of pregnancy, and that notwithstanding her appearance he married her, and has since lived and cohabited with her, then such fact is conclusive evidence that the husband is the father of the child.

In Rhyme v. Hoffman, 6 Jones, Eq. (N. C.) 335, where a mother was pregnant when married, and gave birth to a child six months afterwards, it was held the child was legitimate. The court say “that if a woman big with child by A. marry B., and then the child be born, it is the legitimate child of B.” Cited 1 Rolls, Abr. 358; 2 Bac. Abr. 84. In the same case it was held that a child begotten and born after marriage is legitimate unless it be proven by irresistible evidence that the husband was impotent or died not having any sexual intercourse with the wife.

In State v. Heman, 13 Ired. 502, it was held that a child born during wedlock, though born within a month or a day after marriage, is legitimate by presumption; and when a child is born during wedlock, of which the mother was visibly pregnant at the marriage, the conclusive presumption is that it was the offspring of the husband.

In Hargrave v. Hargrave, 9 Beav. 552, in determining the question as to the illegitimacy of a child begotten and born during wedlock, it is held that the presumption in favor of legitimacy is to have its weight and influence, and the evidence against it ought to be strong, distinct, satisfactory,...