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Rightmire v. Sweat

Supreme Court of Arizona

September 26, 1957

Thomas D. RIGHTMIRE, Appellant,
v.
Cleo SWEAT, Appellee.

Page 660

[83 Ariz. 3] George F. MacDonald, Phoenix, for appellant.

Aldrich, Hughes & Steward, Phoenix, for appellee.

STRUCKMEYER, Justice.

On the 21st day of January, 1954, appellee Cleo Sweat, an unmarried woman, was delivered of a female child. Under the authority of section 12-631, A.R.S. (formerly section 27-402, A.C.A.1939), she brought this action to establish the parentage of the child, alleging that Thomas D. Rightmire, appellant, was the father. Trial was duly had and the jury found that appellant is the father of the child. From the judgment entered on the verdict this appeal has been perfected.

Appellant urges that there was no competent evidence upon which the jury [83 Ariz. 4] could have based a finding that he was the father of this child. We cannot agree with his views of the state of the record. Cleo Sweat testified:

'Q. Did you ever have intercourse with Mr. Rightmire? A. Yes.

'Q. Where did that take place? A. On his property.

'Q. Do you remember the date? A. It was I would say in April in '53-wait a minute-'53.

'Q. Do you remember what date of the week it was? A. It was on a Saturday.

Page 661

'Q. Do you know what Saturday? A. No, I don't.

'Q. Did you have intercourse with Mr. Rightmire more than one time? A. Yes.

'Q. When did that take place? A. I would say about two weeks later.

'Q. What month would that be in? A. That would be in April I would think, possibly the first day of May would be right along in there during that period of time.

'Q. Did you become pregnant from that intercourse? A. Yes.'

In the year 1953, Saturdays occurred on the 11th, 18th, and 25th days of April and the 2nd day of May. If an act of intercourse occurred on the first Saturday in May, there would then be a period of 264 days to date of birth. This is well within the normal period of gestation. Dazey v. Dazey,50 Cal.App.2d 15, 122 P.2d 308; Commonwealth v. Young, 163 Pa.Super. 279, 60 A.2d 831; Shatford v. Shatford,214 Ark. 612, 217 S.W.2d 917; Steed v. State,80 ...


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