DocketNumber: 21153
Citation Numbers: 43 Ga. App. 100, 157 S.E. 901, 1931 Ga. App. LEXIS 201
Judges: Bkoxles
Filed Date: 3/31/1931
Status: Precedential
Modified Date: 10/19/2024
1. “The law now is, that although the birth of a child during wedlock raises a presumption that such child is legitimate, yet that this presumption may be rebutted by evidence; and it is the duty of the jury to weigh the evidence against the presumption, and to decide, as in the exercise of their judgment, the truth may appear to preponderate. Either in a civil suit, or on a criminal prosecution, by the evidence of non access, or other testimony, the presumption of the legitimacy of the offspring may be rebutted. The same rules apply, whether the bastardy originates before or after marriage. In both cases, the law says, presumptively, it is the child of the husband.” Wright v. Hicks, 12 Ga. 155 (2, 3, 4) (56 Am. D. 451).
2. Section 3012 of the Civil Code of 1910, properly construed, means that presumptively all children born in wedlock, or within the usual period of gestation thereafter, are legitimate, and presumptively the children of the husband.
3. In the instant case 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.
4. The accused (a sixteen-year-old boy) was charged with the abandon
5. The fact that the marriage was void for the reason that the defendant was unable to enter into such a contract, because of his tender years (sixteen), did not render the child illegitimate, the marriage not having been annulled and declared void by a competent court. Civil Code (1910), § 2935. See also, in this connection, 35 Cyc. 1335, 1336.
6. The court erred in overruling the defendant’s motion for a new trial.
Judgment reversed.