State v. Romaine

Decision Date05 April 1882
Citation11 N.W. 721,58 Iowa 46
CourtIowa Supreme Court

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, Attorney-general, for the State.




It appears that Annie Swart, the mother of the child, was married to Henry Swart, on the 19th of February, 1880; the child in question was born on the 13th 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 Rhyne v. Hoffman, 6 Jones Eq. 335, where a mother was pregnant when married, and gave birth to a child six months afterward, 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." See 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 did not have any sexual intercourse with the wife.

In State v. Heman, 13 Iredell 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,...

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