People v. Edland

BARNARD, P. J. The defendant was charged with failure to provide for a minor child. A jury found him guilty and judgment was pronounced sentencing him to confinement in the county jail. Execution of the sentence was suspended on the condition that he pay $12.50 per month toward the support of the child. He has appealed from the judgment and from an order denying his motion for a new trial.

The appellant’s first contention is that the evidence is not sufficient to support the implied finding that he was the father of the child in question. It appears that the child was born on March 1, 1939, and that the appellant was married to the mother of the child on December 8, 1938. He testified that he first met the mother of the child on August 23, 1938. He relies upon a portion of her evidence to the effect that sexual intercourse between them began within two weeks after they met. From this he argues that conception took place on September 5, 1938, and that only 176 days elapsed between that time and the birth of the child. From the testimony of a physician to the effect that the child looked like a “full-time” child the appellant argues that conception must have taken place the latter part of May, 1938, and that it follows that it was biologically impossible for him to have been the father of the child.

The theory thus advanced overlooks certain other evidence which was before the jury, only a part of which need be men[106]tioned. The mother of the child testified that she first met the appellant on July 29, 1938, and that she first had sexual intercourse with him within a week of that time. If her testimony is believed, approximately seven months elapsed before the child was born. A physician testified that the birth of a baby in approximately seven months after conception is not uncommon. He also testified that a fall suffered by a woman, if severe enough, could cause a premature birth. There is evidence that on the morning before this child was born the mother fell from a porch which was about three feet high, that she immediately began to feel the effects of the fall, and that she was then taken to the hospital. While the physician who attended her when the child was born testified that the child looked like a “full-time” baby, when asked whether it was a “seven months” or a “nine months” baby, he replied that he could not answer the question. Another physician testified that he examined the mother of the child on November 25, 1938, and concluded that she was “between two and three months pregnant,” which tends to support the mother’s testimony. If, as the appellant contends, this child was conceived the latter part of May, 1938, the mother would have been about six months pregnant at the time of the examination and it seems unreasonable that an experienced doctor would have mistaken a six months pregnancy for one of two or three months.