State v. Cregar

Kunkle, J. This is a proceeding in bastardy originally brought before a justice of the peace under Section 12110, General Code. This section provides: “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, charging a person with being the father of such child, he thereupon shall issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such justice to answer such complaint.” Without undertaking to quote in detail from the record it is sufficient to say that the same discloses that the child in question was begotten September 26, 1916; that Mary R., the complainant, was mar [139] ried February 12, 1917; that the child in question was born June 13, 1917; and that the complainant was at the time of the birth of the child, at the time the proceeding was instituted before the justice of the peace, and still is, a married woman, being the wife of a man other than defendant in error. Can this proceeding, under such a state of facts, be maintained ? We have carefully considered the briefs which have been filed by counsel, and without attempting to discuss in detail the authorities so cited we are of opinion that under the reading of Section 12110, General Code, and under Ohio decisions, such as Haworth v. Gill, 30 Ohio St., 627, and Miller v. Anderson, 43 Ohio St., 473, etc., this action can not be maintained. We are also of opinion that the case of Parker v. Nothomb, 65 Neb., 308-315, cited by counsel for plaintiff in error, is clearly distinguishable from the case at bar. A consideration of the Ohio cases, in our opinion, requires a holding to the effect that the action can not be maintained. The judgment of the lower court will therefore be affirmed. Judgment affirmed. AlLread and Ferneding, JJ., concur.