Goodman v. State

Hammond, J., delivered the opinion of the Court. Judge Grady found the appellant guilty of bastardy in three cases and, in each case, imposed a two-year sentence, suspended the sentence, and placed the father on probation to support the child. The appeal is based on claims that the evidence of non-access by the husband of the mother of the three children was insufficient to permit her to show that the appellant was the father, that the evidence erroneously admitted was insufficient to support a finding that he was, that limitations barred prosecution as to the oldest child, born in February 1959, that the court erred in permitting amendment of the information charging bastardy as to the second child born in December 1960 (the change being in the date of conception), and, finally, that there was a failure of proof that the mother and the appellant had sexual intercourse late enough for the appellant to have been the father of the youngest child, born in May 1962, under the laws of nature. ²⁵⁹ The parties agree that the law of Maryland in effect when the cases now being considered were instituted and tried 1 was: (a) that when a child is born to a married woman the presumption is that the husband is the father, but the presumption may be rebutted by proper evidence; (b) that neither the wife nor the husband can testify to non-access at critical dates and neither they nor the paramour can give testimony that will bastardize the child, until non-access be shown by other testimony; (c) if non-access is so shown, either husband or wife can testify to any other relevant facts, even though the child thereby be bastardized, such as intercourse of the wife with another man and the identity of the father; and (d) that the proof need not be of impossibility of access but only testimony so clear, satisfactory and convincing as to convince the trier of fact that the husband did not have intercourse with his wife at a time when conception of the child in question would have been possible. See Clark v. State, 208 Md. 316 , and cases cited.

The disagreement of the parties is as to whether the proof here met the standards of the applicable law. We think it did. The three older of the six legitimate children who had been born to the mother of the bastards and her husband, ranging in age from sixteen to twenty years of age, testified that their father had left Baltimore in 1954 (apparently to avoid service of a warrant for non-support) and gone to New York where he had lived until 1959. He had then moved to Newark, New jersey, where he had lived since, with another woman.

None of the three children had seen their father, the husband, in Baltimore since he left in 1954 and there was nothing to show he had ever even visited here. Husband and wife