Hale v. State

³²¹ Shehan, J., delivered the opinion of the Court. Harry Hale was presented in the Criminal Court of Baltimore City for bastardy. The indictment charges that: “Harry Hale, late of said City, on the eleventh day of February, in the year of our Lord nineteen hundred and thirty-seven, at the City aforesaid unlawfully did beget upon the body of a woman, namely Edna Doney, a female bastard child, of which said female bastard child, she, the said Edna Doney, was afterward, to wit, on the eleventh day of November in the year of our Lord nineteen and thirty-seven, delivered at the City aforesaid, and which said female bastard child was on the day last aforesaid, in said year, at said City, born alive of the body of the said Edna Doney, and is there still living.” The accused pleaded not guilty and elected to be tried by the court. There was a verdict of guilty, and upon motion a new trial was granted.

Upon his second trial the court again found him guilty, and from the judgment entered on the verdict this appeal was taken. The question here presented arises upon the rulings of the trial court with reference to the admissibility of testimony offered on the part of the State by Edna Doney, the mother of the child, tending to prove the illegitimacy of her offspring. In the trial of this case it was first established that Edna Doney was a married woman at the time of the conception and birth of the child. This being so, the presumption of its legitimacy arises with all the force and the favor the law accords to it, in support of the legitimacy of the child, and thus placed upon the State the exacting burden to show to the contrary by clear, satisfactory and convincing evidence, and in the manner laid down in Harward v. Harward, 173 Md. 339 , 196 A. 318 , and in Scanlon v. Walshe, 81 Md. 118 , 31 A. 498 , and further to show beyond a reasonable doubt that the accused was the father of the child.

This is the gauge of proof required by the law as construed and defined by this court in these two cases. The language there adopted is that “A child born of a married woman is, in the first instance, presumed to be legitimate. The presumption thus established by law ³²² is not to be rebutted by circumstances which only create doubt or suspicion; but it may be wholly removed by proper and sufficient evidence showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3) entirely absent at the period during which the child must, in the course of nature, have been begotten; or (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.” In questioning the legitimacy of a child, evidence of the character and quality above defined must be offered before the mother should be allowed to testify to illicit relations with its alleged father, and that he was the father of her child. Howell v. Howell, 166 Md. 531 , at pages 541 and 542, 171 A. 869 .

In this case, where non-access of the husband was satisfactorily shown, it was held error to exclude the testimony of the wife bearing on the question of identification of its father. This rule finds support in Commonwealth v. Di Matteo, 124 Pa. Super. 277 , 188 A. 425 ; Commonwealth v. Gantz, 128 Pa. Super. 97 , 193 A. 72 ; In re Wray’s Estate, 93 Mont. 525 , 19 P. 2nd. 1051.

In re Gird’s Estate, 157 Cal. 534 , 108 P. 499, 502 , it is stated that: “Nonaccess by the husband being clearly shown, or at least being shown to a reasonable certainty, the positive testimony of Alice as to the paternity of her children was competent evidence, and, under the law, sufficient basis for a finding by the jury on the question of paternity.” A further discussion of the rule and the reasons for- it may be found in Harward v. Harward, 173 Md. 339 , 196 A. 318 , where Judge Offutt fully reviewed the cases and the principles' of law applicable to such cases. See, also, Craufurd v. Blackburn, 17 Md. 49 , 77 Am. Dec. 323 ; Howell v. Howell, 166 Md. 531 , 171 A. 869 ; 1 Bishop, Marriage and Divorce, sec. 1168-1174; Commonwealth v. Di Matteo, 124 Pa. Super. 277 , 188 A. 425 ; Moore v. Smith, 178 Miss. 383 , 172 So. 317 ; 10 Corpus Juris.

Sec., Bastards, sec. 82, p. 170; 7 American Jurisprudence 659. ³²³ Lord Mansfield in 1777, in the case of Goodrich v. Moss, 2. Cowp. 594, said that: “It is a rule founded in decency, morality and policy, that the father or mother shall not be permitted to say, after marriage, that their offspring is spurious.” This rule has been adopted in Maryland and in many other states; however, qualifications have been applied to the rule, so rationalizing it that, in this state and elsewhere, the presumption of legitimacy may be overcome when common sense and reason requires that departure. The unbending observance of the rule has been criticised by Dean Wigmore in his work on Evidence (2nd Ed.) vol. 4, page 387, and Lord Langdale in Hargrave v. Hargrave, 9 Beav. 553, is the author of limitations above quoted and adopted in Scanlon v. Walshe, supra. The trend of modern decisions and text writers, while affirming the general rule, is away from interpreting the presumption as a fixed conclusion.

See Mr. Justice Cardozo’s pronouncement in Re Findlay, 253 N. Y. 1 , 170 N. E. 471 , and cases there cited; Saunders v. Fredette, 84 N. H. 414, 151 A. 820 ; Commonwealth v. Di Matteo, supra. We think the rule, if not already established by the decisions in this state, should be, that when non-intercourse is shown to the trial court by clear, satisfactory, and convincing evidence, then the mother should be held competent to testify as to her relations with the accused, and to disclose the identity of the father of her