
    No. 718
    PIETKIEWICZ v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6475.
    Decided June 8, 1925
    1162. TESTIMONY—Of 14 year old girl bearing upon a common law marriage properly refused admission.
    Attorneys—F. J. Kmiecik, for Pietkiewicz; E. C. Stanton for State; both of Cleveland.
   ■SULLIVAN, J.

This cause comes into this Court on error from the Cuyahoga Common Pleas wherein Anton Pietkiewicz was found guilty under an indictment charged in two counts; there was a verdict of not guilty as to rape with consent, and as to the count of rape with violence, there was a verdict of guilty.

It is sought to reverse the verdict on the ground that it is clearly and manifestly against the weight of the evidence, and that the court erred in allowing testimony on the part of the prosecuting witness, a girl of 14 years of age, as to her age, and also testimony tending to show a common law marriage. The Court of Appeals held:

1. From a' reading of the record it is clear that the court committed no prejudicial error as to the weight of the evidence, for the reason that there is credible evidence in the record showing violence in the commission of the rape and the jury had a right to believe this evidence, even though it came from the prosecuting witness in detailing the facts and circumstances of the case.

2. As to the admission of testimony as to her age we think it was perfectly competent, because to decide otherwise would deprive a father as a witness to prove fatherhood and a child to prove paternal parentage, and we do not think that the court committed error to these respects.

3. Another serious proposition in the case is that inasmuch as the prosecutrix was but fourteen years of age she would be incompetent to contract a marriage of any nature and, therefore the court committed no prejudice when he refused to admit evidence bearing upon a common law marriage.

4. For these reasons there was no prejudicial error, and the judgment of the court below is affirmed.  