Sieg v. State , 1 Ohio Law. Abs. 814 ( 1923 )

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.