
    No. 676
    ROBERTS v. STATE ex rel MARTIN
    No. 19906.
    Supreme Court
    On motion to certify.
    Dock. June 17, 1926;
    4 Abs. 404.
    129. BASTARDY — Where an affidavit for arrest for bastardy was filed, said affidavit reciting that the claimant was unmarried and it appearing later at the trial by the claimant’s testimony that she was married, should the case be dismissed?
    Attorneys — W. E. Bigony for Roberts; D. S. Bachman and J. H. Cooper for Martin; all of Columbus.
   It appears that Eva Martin caused the arrest of one Floyd Roberts by virtue of an affidavit sworn to by-Martin which affidavit recited that she was unmarried and that he was the father of twins to which she had given birth.

At the trial Martin testified that she was married and had been married at the time of the inception and that her husband was now living.

The court refused to let one Bolin testify because the witness was in the court room and thereupon it was stipulated that Roberts expected to show by testimony of this witness that Eva Martin had had intercourse with another man. The court overruled an objection made by counsel for Roberts to certain testimony concerning certain acts to impeach his testimony.

In argument before the Court of Appeals, counsel for Martin stated that she had been found to be of the mentality of five or six years of age after examination; and thereupon Roberts moved for a reversal of the judgment of the Juvenile Court of Franklin County on the ground that Martin was incapable of testifying.

Roberts in the Supreme Court contends:

1. That a married woman cannot bring an action for bastardy.

2. That children born to a married woman are presumed to be legitimate and therefore this action should have been dismissed when Martin testified that she was married.

3. That the court erred in excluding the testimony of a witness because he had been in the court room.

4. That the court erred in permitting Martin to introduce witnesses to impeach his character.

5. That the Court of Appeals erred in refusing to render judgment for Roberts upon the statement of counsel for Martin that she had the mentality of a child of'5 or 6 years.  