Warren v. State

• Decision Date: 15 January 1935
• Docket Number: 6 Div. 640.
• Citation: 26 Ala.App. 284,158 So. 770
• Parties: WARREN v. STATE.
• Court: Alabama Court of Appeals

158 So. 770

26 Ala.App. 284

WARREN v. STATE.

6 Div. 640.

Court of Appeals of Alabama

January 15, 1935

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Olen Warren was convicted of bastardy, and he appeals.

Reversed and rendered.

J. J Curtis, of Jasper, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

RICE Justice.

While the general law on the subject is none too clear (see 3 R. C L., p. 719, Bastards; also 126 Am. St. Rep. 261, note), yet we are of the opinion that the following language of our Supreme Court, used in deciding the case of Bullock v. Knox, 96 Ala. 195, 11 So. 339, 340, is all that we need for our guidance in disposing of the instant appeal (Code 1923, § 7318), to wit:

"The ancient common-law authorities declared the issue of every married woman to be legitimate, except in the two special cases of the impotency of the husband and his absence from the realm. * * * That rule has long since been exploded. * * * The rule was first relaxed by permitting the conclusion of illegitimacy to be drawn in certain other special classes of cases in which legitimacy was impossible. * * * Finally, the simple rule was recognized that a child is a bastard, though born, or begotten and born, during marriage, when it is impossible that its mother's husband could have been its father. * * * The modern authorities sustain the propositions that the presumption of legitimacy from the birth of a child during marriage may be rebutted by evidence which clearly and conclusively shows that the procreation by the husband was impossible." (Italics ours.)

So far as we are advised, the common-law rule, as liberalized and stated above, is the rule prevailing in Alabama today. And under it this prosecution must fail.

It is without dispute that at the time the conception took place, which gave rise to the birth of the child involved, the mother (prosecutrix) was legally married to another than appellant. The husband, though living apart from her, lived in the same community, and associated with her during the time. We see nothing in the testimony tending to render it impossible that he should have been the father of the baby.

True, prosecutrix testifies that during all the time in which conception could have taken place the said husband had no intercourse-sexual intercourse-with her.

But we think, and hold, that the Supreme Court, by the use of the word impossible, above, meant naturally physically, or scientifically impossible; not merely impossible because of voluntary, or involuntary, abstinence. To hold...