
    No. 839
    SIEG v. STATE
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4774.
    Decided Oct. 1, 1923
    54A. BASTARDS.
    Incapacity or inaccessibility of husband is essential to prove child born in wedlock illegitimate — Wife competent witness to prove illegitimacy of child— Adulterous ■ acts of wife not sufficient alone to rebut -presumption of-'legitimacy. 129 — CRIMINAL. LAW. Variance exists between averment that accused failed to support legitimate child and proof thal child was illegitimate.
    Attorneys — David & Heald, for Sieg; Stanton, fi State.
   LEVINE, J.

Epitomized Opinion

Sieg was indicted under 1308 GC. for neglect t< provide for a legitimate child. On trial Agne. Balcom, the mother of the child, was permitted, a: against objection, to testify that she was a marriei woman, and that she had not lived with or see: her husband for over four years. She testified tha Sieg had cohabited with her and was the father o the child. Her story to the affect that she had no seen her husband for a period of four years wa not corroborated by other witnesses. As the ac cused was convicted, error was prosecuted. versing the judgment of the lower court, thcflSHj of Appeals held:

1. Before a child begotten in wedlock can b adjudged a bastard, the. proof must be clear, cei tain-and conclusive, either that the husband had n power of procreation, or the circumstances wer such as to render it impossible that he could b the father of the child,

2. The wife is a competent witness to testify t| the non-access of her recreant husband in a crimina case against a putative father of her illegitimat| child, for failure to provide said child with necessar and proper food.

3. The testimony of the mother alone, in view c| the life she was leading and her adulterous act: was insufficient to clearly rebut the presumption c| the legitimacy of the child.

4. As the affidavit charged that the accused hal failed to support his legitimate child and the ev| dence disclosed that the child was illegitim, fatal variance existed, and it was incompete' prove that the child was illegitimate under such a| indictment.  