Welch v. Cliburne

Whitfield, O. J.,

delivered the opinion of the court.

This was a proceeding under chapter 15, Code of 1906, to-compel appellee to support a child, alleged to be a bastard. The appellant, after she had been gotten with child, as alleged by appellee, married another man, who, upon finding out that she was pregnant, deserted her. The child was born some months later, and appellant then filed this proceeding against the appellee; she being at the time of the filing of the complaint, a married woman. The point was made in the court helow that she could not maintain the proceedings marked out in said chapter 15, because such chapter refers alone to. a single woman who shall have a bastard. This point was maintained by the court below, and the proceedings dimissed.

We thing the action of the court below was correct under our statute. The language of Code 1906, § 268, is: “When any single woman shall be delivered of a bastard, or being pregnant with a child which, if born alive, would be a bastard, shall make complaint,” etc. A child born in wedlock is presumed to be legitimate until the contrary is shown; and the child referred to in the second clause of the statute means a child which, when born, will be in the eye of the law a bastard—that is to say, the child of a single woman. Code 1906, § 273, provides that “the death of the bastard, if the mother be living and unmarried, shall not be cause of abatement or bar to any prosecution for bastardy.” This clause and other expressions in the chapter, but especially the language of section 268, plainly show that the provisions of the chapter apply alone to single women. The case of State v. Ingram, 4 Hayw. (Tenn.) 221, found in 3 Tenn. (Cooper’s Ed.) 377, is cited by the learned counsel for appellant; hut the statement of facts in that case shows that the woman was a single woman at the time she charged Ingram with *446 being the father of her child; the child having been bom while she was such single woman. That case is, therefore, of no authority here.

The cases generally may be found cited in 5 Cyc. at page 650, note 48. In the case of Judge of the County Court of Limestone v. Kerr, 17 Atl. 328 , the point is expressly decided as we decide it, and upon a like statute. In that case Mary Simpson filed a complaint against James H. Kerr for the support of her bastard child. It appeared, on the trial, that Mary Simpson was a married woman,, but that her husband had abandoned her several years before the birth of the child, and speaking of this- the court said: “On this evidence, the court instructed the jury that, if they believed that Mary R. Simpson was a married woman, they must find for the defendant, notwithstanding they might believe him to be the father of the child. The statute under which these proceedings were had evidently contemplates that a single woman alone can prefer a complaint of bastardy against one who may be the father of the bastard. The language of the act is: ‘When any single woman, who shall be pregnant or delivered of a child which by law would be considered a bastard, shall make complaint,’ etc. As ■this statute is penal in its nature, it must be strictly construed, .and a married woman cannot be permitted to prefer the complaint, although she be delivered of. a bastard during coverture. This construction was placed on the act by this court in the case of Pruitt v. Judge of the County Court, 16 Ala, 705.” This statute is like our, and we think the proper construction was put upon it by the supreme court of Alabama,

The judgment is affirmed.