Maloof v. State , 67 Ga. App. 269 ( 1942 )

1. The evidence authorized the verdict.

2. The special assignments of error show no cause for a reversal of the judgment.

DECIDED APRIL 10, 1942. 1. The defendant was convicted in the criminal court of Fulton County of abandoning his minor child and leaving it in a dependent condition. The defendant's sole defense was that he was not the father of the child. The evidence, while conflicting, authorized the jury to find that he was the child's father and that he was guilty of the offense charged.

2. The special grounds of the petition for certiorari assign error on the following excerpts from the charge of the court: (a) "I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate." (b) "But this is what is known as a rebuttable presumption, and if the alleged father of the child [in an abandonment proceeding denies that he is the father of the child], then he has the right to introduce evidence to show that the child is in fact not his." The two excerpts complained of are contained in the following paragraph of the charge: "I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate. The legitimacy of a child thus born may be disputed. That is to say, with reference to children born in wedlock or within the usual period of gestation thereafter, the presumption of law is that they are legitimate. But this is what is known as a rebuttable presumption, and if the alleged father of the child in an abandonment proceeding denies that he is the father of the child, then he has the right to introduce evidence to show that the child is in fact not his." The two excerpts, considered in the light of their context and the facts of the case, while subject to slight criticism, show no cause for a reversal of the judgment. Wright v. Hicks, 12 Ga. 155 (56 Am. D. 451). InMims v. State, 43 Ga. App. 100 (157 S.E. 901), cited by counsel for the plaintiff in error, the judgment was reversed because "the court erred in charging, in substance, that a child born in wedlock, or within the usual period of gestation thereafter, was, as a matter of law, the child of the husband." In that case the jury were not instructed that when a child was so born, the presumption was that it was the husband's child, but that such presumption was rebuttable. The overruling of the certiorari was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.