
    Powell v. The State, ex rel. Fowler.
    
      Every child begotten in lawful wedlock — Presumed legitimate — ■ Evidence required to prove such child bastard.
    
    1. Every child begotten in lawful wedlock is presumed in law to be legitimate.
    2. Before such child can be adjudged a bastard the proof must be clear, certain and conclusive, either that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child.'
    (No. 11816
    Decided May 9, 1911.)
    Error to the Circuit Court of Franklin county.
    Mollie Fowler was married to Karl Koch on the 8th day of March, 1898, and was divorced from him on the 15th day of September, 1904. No entry of the decree of divorce was put upon the records of the court until some two years later, when a decree nunc pro tunc was entered. Sometime later she married a man named Jaycox, but the evidence does not disclose the date of this marriage. On the 7th day of January, 1907, she filed with a justice of the peace an affidavit in which she stated that she was then an unmarried woman, a resident of Montgomery township, Franklin county, Ohio; that on the 12th day of January, 1905, she was delivered of a bastard child, and that John V. Powell was the father of such child. In her examination before the magistrate on the hearing of said charge she testified that she was an unmarried woman. On cross-examination she testified that she was married to Karl W. Koch on the 7th day of March, 1898; that she was divorced from him, but did not give the date of the divorce; that she had separated from him on the 22nd day'of-February, 1904; that she saw him last on the 21st day of July, 1904, and that her child was born on the 12th of January, 1905. On the trial of the case in the common pleas court she testified that she had separated from her husband several times before this final separation, and during each of these separations she sustained illicit relations with the defendant Powell, and then would return to her husband for short intervals and again leave him and. renew her adulterous relations with Powell; that the final separation occurred on the 22nd of February, 1904, after which time she continued to live with Powell pending her proceedings for divorce from her husband; that she became pregnant on the 3rd day of April, 1904, and that the defendant, John V. Powell, was the father of her child, and she denies that she ever had any sexual relation with her husband after the final separation. It appears from the evidence that Karl Koch resided in Columbus at least up until July 21, 1904. There is , some evidence tending to show that he did leave Columbus shortly after that date, but that is not clear. Her evidence is corroborated as to the fact that Powell balled upon her at the different places where she was living after her separation from her husband, but she is wholly uncorroborated as to whether or not she had sexual relation with her husband after- February 22, 1904. It was admitted that two witnesses who were offered by the defense'would testify that she had told them that her husband was the father of this child. Another witness- did testify that she asked her if she did not think the child resembled its father, Karl Koch. This affidavit in bastardy was not filed until about two years after the birth of the child and about the time she received information that the defendant Powell was to be married to another woman.
    The jury returned a verdict finding the defendant guilty, a motion for new trial was overruled and the defendant was adjudged the putative father of the relator’s child, and adjudged to stand charged with the maintenance of the child in a sum fixed by the court, payable at certain intervals. The circuit court affirmed this judgment of the common pleas court and this proceeding in error is prosecuted to reverse the judgment of both courts.
    
      Mr. Claude L. Brewer, for plaintiff in error,
    cited and commented upon the following authorities :
    
      Schaffer v. Mueller, 8 Dec. R., 751; Miller v. Anderson, 43 Ohio St., 473; Haworth v. Gill, 30 Ohio St., 627.
    
      Mr. Fred S. Hatch and Mr. James A. Miles, for defendant in error,
    cited and commented upon the following authorities:
    
      Devinney v. State, Wright, 564; Johnson v. State, 55 Neb., 781; State v. Lavin, 80 Ia., 555; Miller v. Anderson, 43 Ohio St., 473; Haworth v. Gill, 30 Ohio St., 627; Roth v. Jacobs, 21 Ohio St., 646; Law v. Albert, 8 O. C. D., 784, 62 Ohio St., 649; Crow v. Jordon, 49 Ohio St., 655; Gilmanton v. Ham, 38 N. H., 108; Woodward v. Blue, 107 N. Car., 407; Schaffer v. Mueller, 8 Dec. R., 751; 5 Cyc., 629, 630; Howes v. Draeger, 23 Ch. Div., 173; Marr v. Marr, 3 U. C. C. P., 36; In re Jessup, 81 Cal., 408; Shorten v. Judd, 56 Kans., 43; Pendrell v. Pendrell, 2 Str., 925; State v. McDowell, 101 N. Car., 734; Wright v. Hicks, 15 Ga., 160.
   Donahue, J.

Section 5614, Revised Statutes (Section 12110, General Code), provides that when an’ unmarried woman who has been delivered of or is pregnant with a bastard child makes complaint thereof in writing under oath before any justice' of the peace charging a person with being the father of such child, the justice shall issue his war-' rant for the arrest of the person so charged. The statute uses the word “bastard” but does not define it; therefore, the common law definition of bastard is the proper meaning to be given to that word as used in this statute. .The common law definition of bastard is one that is begotten and born out of lawful matrimony. 1 Blackstone Commentaries, 454; 2 Kent, 208. This definition is now subject to some modification, but a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate, and before it can be found to be a bastard the proof must be clear and convincing. In England unless the husband was shown to be beyond seas during all the period in which it was possible for the wife to become pregnant and be delivered of a child, or unless it could be shown beyond cjuestion that the husband had no power of procreation, this presumption was so absolúte that the doctrine of filiatio .non potest. probaris applied and no proofs would be received to dispute the legitimacy of the child. This doctrine has practically been adopted in the United States with the modification that if the child is born under such circumstances that render it impossible that the husband of its mother can be its father, then the child may be adjudged a bastard. Van Aernam v. Van Aernam, 1 Barb. Ch., 375; Dennison v. Page, 29 Pa., 420; Watts et al. v. Owens, 62 Wis., 512. But such impossibility must be proven beyond a reasonable doubt. Stegall v. Stegall’s Admr., 2 Brock., 256; Cross v. Cross, 3 Paige Ch., 139; Wright v. Hicks, 15 Ga., 160; State v. Herman, 13 Ired., 502.

The question, therefore, to be presented to the jury in a case of this character is not whether the mother of the child and her husband did or did not have sexual intercourse at or about the time the wife became pregnant, but whether under the circumstances proven such acts of intercourse were possible. In other words, such circumstances must be shown by the evidence as would render it impossible that the husband of this woman could be the father of her child.

The evidence offered in this case as shown by the record falls far short of proof of all the requisite facts to authorize a jury or court to find therefrom that a child begotten in lawful wedlock is a bastard. The only evidence tending in that direction is the testimony of the mother that she had no sexual intercourse with her husband from and after the 22nd of February, 1904, a period of 324 days before the birth of the child, and she is not corroborated except perhaps as to her illicit relations with Powell, but proof of the adultery of the wife is not sufficient to show the child is a bastard. She is contradicted in two or three important particulars. True, some of these witnesses were not called to testify, but she admitted in open court that if they were called they would testify that she had said to -them that her husband was the father of the child, and that its blindness resulted from the fact .that its father, her former husband, was suffering with a venereal disease. Aside from this it is clearly in evidence that this woman falsely testified in her divorce case, or at least deceived the court and obtained a divorce by fraud, for according to her evidence now, she was then, and for many months prior to the time of the granting of the divorce, cohabiting in a state of adultery. She now seems willing to add to her own infamy, and further wrong her child, either for the purpose of securing a few dollars from the defendant, or for revenge for his failure to marry her. But if her testimony should be taken as proving beyond a reasonable doubt all- the matters and things to which she testifies, even then the evidence fails to meet the measure of the law. Public policy requires that the status of a child born or begotten in lawful wedlock should be fixed and certain, and the immediate exigencies or even the appa'rent justice of any particular case will not justify a departure from the rule so necessary and salutary to the best interests of society. The law is not willing that a child shall be declared a bastard to suit the whims or purposes of either parent, nor upon evidence merely that no actual act of intercourse occurred between husband and wife at or about the time the wife became pregnant. The proof must be such as to show the impossibility of access, and this evidence not only fails to prove that, but on the contrary it does show that access was a physical possibility at all the time from the date that she claims there was a final separation up until the time the divorce was granted, or at least up until the 21st day of July, after which time there is some proof, very vague and uncertain however, that he was in distant parts. The common pleas court charged the jury among other things, that there is a strong presumption that the husband is the father of a child begotten during the marriage; that the presumption is not conclusive and may be overcome by evidence where it is shown to the jury that the husband could not possibly have had any intercourse with his wife. The charge of the court in this respect was right. The only criticism is, that from the whole paragraph the jury might have understood that the presumption could be overcome by her testimony that she 'had not had sexual intercourse with her husband from the 22nd of February of that year. However that may be, it is evident that the jury either did not understand the charge as given, or did not apply it to the proofs offered, for there is practically no evidence in this record rebutting the presumption of law that her then husband is the father of this child.

Judgment of the common pleas court and of the circuit court is' reversed and cause remanded for further proceedings according to law.

Reversed.

Spear, C J., Davis, Shauck and Johnson, JJ., concur.  