Maloof v. State

Court of Appeals of Georgia

Maloof v. State

19 S.E.2d 786, 67 Ga. App. 269, 1942 Ga. App. LEXIS 364

CourtCourt of Appeals of Georgia

DecidedApril 10, 1942

Docket29459.

StatusPublished

This text of 19 S.E.2d 786 (Maloof v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maloof v. State, 19 S.E.2d 786, 67 Ga. App. 269, 1942 Ga. App. LEXIS 364 (Ga. Ct. App. 1942).

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Opinion

Broyles, C. J.

1. The defendant was convicted in the criminal court of Fulton County of abandoning his minor child and leaving it in a dependent condition. The defendant’s sole defense was that he was not the father of the child. The evidence, while conflicting, authorized the jury to find that he was the child’s father and that he was guilty of the offense charged.

2. The special grounds of the petition for certiorari assign error on the following excerpts from the charge of the court: (a) “I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate.” (b) “But this is what is known as a rebuttable presumption, and if the alleged father of the child [in an abandonment proceeding denies that he *270 is the father of the child], then he has the right to introduce evidence to show that the child is in fact not his.” The two excerpts complained of are contained in the following paragraph of the charge: “I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate. The legitimacy of a child thus born may be disputed. That is to say, with reference to children born in wedlock or within the usual period of gestation thereafter, the presumption of law is that they are legitimate. But this is what is known as a rebuttable presumption, and if the alleged father of the child in an abandonment proceeding denies that he is the father of the child, then he has the right to introduce evidence to show that the child is in fact not his.” The two excerpts, considered in the light of their context and the facts of the case, while subject to slight criticism, show no cause for a reversal of the judgment. Wright v. Hicks, 12 Ga. 155 (56 Am. D. 451). In Mims v. State, 43 Ga. App. 100 (157 S. E. 901), cited by counsel for'the plaintiff in error, the judgment was reversed because “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.” In that case the jury were not instructed that when a child was so born, the presumption was that it was the husband’s child, but that such presumption was rebuttable. The overruling of the certiorari was not error.

Judgment affirmed.

MacIntyre and Gardner, JJ., concur.

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Broyles, C. J.

1. The defendant was convicted in the criminal court of Fulton County of abandoning his minor child and leaving it in a dependent condition. The defendant’s sole defense was that he was not the father of the child. The evidence, while conflicting, authorized the jury to find that he was the child’s father and that he was guilty of the offense charged.

2. The special grounds of the petition for certiorari assign error on the following excerpts from the charge of the court: (a) “I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate.” (b) “But this is what is known as a rebuttable presumption, and if the alleged father of the child [in an abandonment proceeding denies that he *270 is the father of the child], then he has the right to introduce evidence to show that the child is in fact not his.” The two excerpts complained of are contained in the following paragraph of the charge: “I charge you that all children born in wedlock or within the usual period of gestation thereafter are legitimate. The legitimacy of a child thus born may be disputed. That is to say, with reference to children born in wedlock or within the usual period of gestation thereafter, the presumption of law is that they are legitimate. But this is what is known as a rebuttable presumption, and if the alleged father of the child in an abandonment proceeding denies that he is the father of the child, then he has the right to introduce evidence to show that the child is in fact not his.” The two excerpts, considered in the light of their context and the facts of the case, while subject to slight criticism, show no cause for a reversal of the judgment. Wright v. Hicks, 12 Ga. 155 (56 Am. D. 451). In Mims v. State, 43 Ga. App. 100 (157 S. E. 901), cited by counsel for'the plaintiff in error, the judgment was reversed because “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.” In that case the jury were not instructed that when a child was so born, the presumption was that it was the husband’s child, but that such presumption was rebuttable. The overruling of the certiorari was not error.

Judgment affirmed.

MacIntyre and Gardner, JJ., concur.

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19 S.E.2d 786, 67 Ga. App. 269, 1942 Ga. App. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maloof-v-state-gactapp-1942.

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