Opinion
No. 32737
Decided March 26, 1952.
Bastardy — Proceedings governed by statute — Complainant must be unmarried at birth of child — Section 8006-1, General Code.
Bastardy proceedings are governed wholly by statute, and under the provisions of Section 8006-1, General Code, a woman, to make a valid complaint in bastardy, must have been unmarried at the time of the birth of the alleged bastard child.
APPEAL from the Court of Appeals for Mahoning county.
Involved in the instant cause is the right of Gertrude L. Hoerres, the appellee herein, to maintain a bastardy proceeding against Ralph M. Wilkoff, the appellant herein. In sustaining the motion of Wilkoff to strike from the files the complaint and the transcript of the proceedings before a justice of the peace, the Court of Common Pleas decided she did not possess such right. In reversing the judgment below on an appeal on questions of law, the Court of Appeals held otherwise.
Allowance of a motion to require the Court of Appeals to certify its record brings the controversy before this court on its merits.
Complainant stated in her examination before the justice on June 3, 1949, that she was delivered of a bastard child, a girl, on August 3, 1944; that such child was begotten on or about October 31, 1943; that at the times the child was conceived and delivered she was married to Lawrence Henry Hoerres; and that Hoerres divorced her on April 26, 1949.
Mr. K.H. Powell and Mr. Joseph N. Higley, Jr., for appellee.
Messrs. Henderson Covington, for appellant.
The decision in this case turns on the proper interpretation of Section 8006-1, General Code, which is in substantially the same language as former Section 12110, General Code, applicable in this case, and which reads:
"When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing, under oath, before a justice of the peace or in Juvenile Court charging a person with being the father of such child, the judge or justice shall issue his warrant, directed to any sheriff, police officer, or constable commanding him to pursue and arrest such accused person in any county and bring him forthwith before such judge or justice to answer such complaint." (Italics supplied.)
Since a bastardy proceeding is wholly statutory and is somewhat penal in nature, statutes relating to that subject should not be enlarged by implication beyond the words actually used. When a child is conceived and born during the existence of a lawful marital relationship, there is a strong presumption of legitimacy. The bastardizing of innocent children is a serious matter of public concern and it was certainly not the intention of the General Assembly to put it in the power of a woman married when her child was conceived and born to accuse another than her husband of being the father of such child and thereby place in issue the legitimacy of offspring according to her whim or fancy.
As we interpret Section 8006-1, General Code, in relation to the undisputed facts of the instant case, and bearing in mind that at common law a bastard was a person begotten and born out of lawful wedlock, such section means that as a prerequisite to the filing of a complaint in bastardy, the complainant must have been an unmarried woman at the time of the delivery of the child involved. Certainly such was the holding of this court in Haworth v. Gill, 30 Ohio St. 627, and in State, ex rel. Walker, v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, it was not the intention in anything that may have been said to modify such holding.
The judgment of the Court of Appeals is therefore reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., STEWART, MIDDLETON, TAFT, MATTHIAS and HART, JJ., concur.