APPEAL from the Circuit Court of Cook County; the Hon. RUSSELL
J. DOLCE, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant Beethoven Askew was convicted of criminal nonsupport of wife and child. (Ill. Rev. Stat. 1975, ch. 68, par. 24.) He was sentenced to a term of one year probation and ordered to pay $50 per month for 3 years for the benefit of the Illinois Department of Public Aid. The issues for review are (1) whether the issue of paternity may be litigated in a criminal proceeding under this Act, (2) whether the trial court erred in denying defendant's motion to order blood tests, (3) whether defendant presented sufficient evidence to overcome the presumption that he is the father of a child born to his wife during marriage, and (4) whether defendant's waiver of his right to a jury trial was knowingly and understandingly made.
The complaint filed against defendant asserted that he had committed the offense of nonsupport of his wife Jacquelyn Askew and his child Deshawn Askew by failing to provide support after May 1, 1976. Immediately prior to trial, the court denied a defense motion for blood tests after agreeing with the prosecuting attorney's argument that the motion constituted improper discovery during a criminal proceeding.
At trial the complaint testified that she and defendant were married in 1968, and one child of the marriage, Deshawn, was born September 26, 1975. She further stated defendant had not offered any support for her or her child since May 1, 1976, and she had been living on public aid.
The complainant testified she separated from her husband in 1972; although they had lived together in 1974 for about 6 months, she had not lived with him since. There was no testimony as to whether she had lived with him in November and December of 1974, the only possible months of conception. When she asked defendant for support, he told her he had his own family to take care of and asserted the child was not his.
Defendant testified he had been separated from his wife since March 1971 and had not resided with her since. He stated that his wife left him, and when he contacted her, she refused to live with him. He denied that Deshawn Askew was his child.
1 The first question to be decided is whether the issue of paternity may be litigated in a criminal proceeding pursuant to section 24 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1975, ch. 68, par. 24), under which defendant was convicted; it provides in relevant part as follows:
"Every person who shall, without any lawful excuse, neglect or refuse to provide for the support or maintenance of his spouse, said spouse being in need of such support or maintenance, or any person who shall, without lawful excuse, desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of 18 years, in need of such support or maintenance, shall be deemed guilty of a Class A misdemeanor * * *."
The statute does not explicitly provide for a determination of paternity; however, it does state that a parent is responsible for the support of "his or her child" (emphasis added), which suggests that the determination of paternity is implicit in the Act. See generally Annot., 81 A.L.R.3d 1175, 1178.
The cases in Illinois have not resolved the issue. In People v. House (1930), 259 Ill. App. 27, 29, the court held that in a criminal prosecution the defendant-husband could not raise the issue of paternity, citing Zachmann v. Zachmann (1903), 201 Ill. 380. However, Zachmann is authority only for the proposition that there is a presumption of legitimacy of a child born during wedlock, even if conception occurs prior to marriage, and it does not hold that the presumption of legitimacy is a conclusive one. In People v. Powers (1950), 340 Ill. App. 201, 91 N.E.2d 637, defendant's only defense in the criminal action was that he was not the father of his wife's child. Defendant testified his wife was mentally ill and that he did not live with her during the possible period of conception. The court held that such unsupported testimony was insufficient to overcome the presumption of paternity and affirmed the conviction. Thus, although the court rejected defendant's evidence as being insufficient, it apparently did consider paternity as a defense under the statute.
Cases from other jurisdictions have held that a determination of paternity may be made for the first time in criminal prosecutions for nonsupport. (State v. Carter (1963), 175 Ohio St. 98, 99, 191 N.E.2d 541, 542; State v. Medley (1960), 111 Ohio App. 352, 353-56, 172 N.E.2d 143, 145-46.) It has also been held that paternity is an issue which must be proved beyond a reasonable doubt. (Hunt v. State (1960), 101 Ga. App. 126, 127, 112 S.E.2d 817, 818; State v. Williams (Mo. App. 1961), 349 S.W.2d 375, 378; State v. Brown (Mo. App. 1969), 446 S.W.2d 498; State v. Summers (Mo. App. 1972), 489 S.W.2d 225, 227; also see Annot. 46 A.L.R.2d 1001 (1956).) In Williams the court stated:
"Insofar as the contention that paternity is an element is concerned, we agree with appellant that it is. Surely the legislature never intended [the statute] to require a man to support any one else's children. The very language of the statute confirms this when it states `* * * or if any man or woman shall, without good cause * * * refuse to provide * * * for his or her child or children * * *.'" (Emphasis added.)
In State v. Brown the court stated:
"It is well established that to support a conviction under this statute the state is required to establish every element of the offense. [Citation.] And it is likewise true that paternity is an element. [Citation.] Those facts, together with the unquestioned jurisdiction of the trial court over the person of the appellant and the offense charged, make it obvious the trial court had jurisdiction to make the determination of the constituent element paternity. Had the legislature desired to require a separate ...