State v. Hickman , 8 N.C. App. 583 ( 1970 )

174 S.E.2d 609 (1970)

STATE of North Carolina
v.
Bobby Gray HICKMAN.

No. 7021SC342.

Court of Appeals of North Carolina.

June 24, 1970. Certiorari Denied August 28, 1970.

Atty. Gen., Robert Morgan by Asst. Atty. Gen., R. S. Weathers for the State.

Wilson, Morrow & Boyles, by John F. Morrow, Winston-Salem, for defendant appellant.

CAMPBELL, Judge.

It is presumed that a child born in wedlock is the legitimate child of that marriage unless it is shown that the husband could not have had access to the spouse at a time when the child could have been conceived or that the husband was impotent or that other circumstances would prevent the husband from being the father of the child. See State v. Key, 248 N.C. 246, 102 S.E.2d 844 (1958). Hickman admitted that he dated Joan on 15 March 1968 and that he knew she was pregnant when he married her. It would be anomalous for him to try to prove after that admission that he, in effect, did not have access. As has been succinctly said under those circumstances, he "takes whatever is in the gum." He may not complain that medical evidence and other testimony tending to show a different gestation period was excluded. His assignments of error in this regard are without merit.

The defendant also challenges the charge of the trial judge as follows:

"`* * * under the law, when a child is born in wedlock, that is, when a child is born during the marriage of the mother, the law presumes that this child is the child of the husband of the mother at the time the child was born. Now, this presumption of legitimacy of the child cannot be rebutted except by evidence tending to show that the husband could not have access to the mother during the period of time which the law recognizes as the period of time that the child could have been conceived. This period of time which the law recognizes as the period of time during which the child could have been conceived is a period of time sometimes referred to in the law as the normal period of gestation, and this period may be anywhere from seven, eight, or nine or nine and a half, or ten months from the date of the birth of the child, and the only way the presumption of legitimacy of the child born during the marriage of the man and wife may be rebutted is by evidence tending to show that the husband could not have had access to the wife during the period of time that I have referred to.'"

This assignment of error is without merit. State v. Snyder, 3 N.C.App. 114, 164 S.E.2d 42 (1968).

We find in law

No error.

PARKER and VAUGHAN, JJ., concur.