Boughner v. State , 6 Ohio Law. Abs. 597 ( 1928 )

ROBERTS, J.

It is admitted by counsel for Plaintiff in Error in effect that there is a conclusive presumption of the legitimacy of a child, unless impossibility of access of the husband be shown during the reasonable period of gestation. This is not, however, a correct statement of the rule. The _ reasonable period, as recognized by authorities, is 280 days, or substantially nine months, but the normal period of gestation varies from periods considerably shorter to considerably longer than that designated, so that the presumption should exist through such a length of time although considerably longer than the generally recognized period, as legitimacy might exist by reason of access of the husband.

Powell v. State ex. rel. Fowler, 84 OS. 165.

From the 18th day of March, when the hus- and ai^d wife had intercourse, according to her testimony, to the date of -its birth, December 23d, would be 279 days, if figured correctly, or 281 days from the 16th of March, the date when the husband admits that he occupied the home, and that his wife was also there.

Under the rule established by the authority hereinbefore quoted from, a conclusive presumption of- legitimacy arises which cannot be overcome by other testimony in the case to the effect of absence of intercourse on the part of the husband, or adulterous relations by the wife with other men.

It is claimed further in this connection, by counsel on behalf of Plaintiff in Error, that this being a criminal case, the Plaintiff in Error was presumed to be innocent until proven guilty beyond a reasonable doubt, and that this presumption was in conflict with the presumption of legitimacy, and, in fact, overcame such presumption of legitimacy. This contention is not well founded. The presumption of the parentage of the child being conclusive as held by the Supreme Court, the general presumption of innocence in a criminal case must be subservient thereto.

The Defendant below requested the Court to give to the jury four special requests, all of which were refused. Without taking time to quote them in full, they were to the effect that the jury would not be warranted in returning a verdict of guilty of the offense charged, during such period of time as the prosecuting witness, Mary L. Boughner, and her child, Gladys, made their home together in Benwood, West Virginia, and to the same effect during the period of time that they made their home in Belmont County, Ohio.

It is in evidence that shortly after the separation of the Plaintiff in Error and his wife, she went to West Virginia and there lived for some two years. Later, she lived some time in Belmont t County, and for about six months lived in ’this County, part of which time, the child was in the Children’s Honre where she worked for its support without other compensation.

The indictment charging neglect covered the period of time from the birth of the child, December 23d, 1923, to the commencement of these proceedings, January 5th, 1927.

It is not requisite to a conviction that the Plaintiff in Error neglected, as charged, this child during the whole period mentioned, but such neglect, to be sufficient, might be of portions of such time, and concededly, she lived some six months in this County.

There was no error in the refusal of these requests. Permitting evidence concerning neglect during her absence from the State was not prejudicial. The jury simply returned a verdict of guilty, which it would have a right to do had she been in the State during the whole of the period, or only part of the period, during which such neglect was charged.

The essence of the offense charged is the neglect. To be the parent of the child was not of itself criminal or wrongful. The presumption of innocence, therefore, would apply directly and particularly to the proposition as to whether or not the child was neglected.

It is further complained that the Court erred in not permitting evidence tending to show illicit relations between the mother of the child, and another man during the period of gestation. This refusal of the Court was not prejudicial because of the conclusive presumption hereinbefore commented upon, that the husband under the circumstances, was the father of the child.

After a careful examination of this case and a consideration of the matters urged by counsel in connection therewith, we find no reversible error, and the judgment of the Court of Common Pleas is affirmed.

(Farr and Pollock, JJ., concur.)