Vern Waggoner was convicted in common pleas for non-support of a child aged one month. The evidence disclosed that the parties were married in August, 1922. The child was born Oct. 1923; the mother testified that Waggoner is the father of the child. "

Waggoner denies that he is the father and denies he had sexual intercourse with his wife in Jan. 1923, when she claimed the child was begotten. There was at that time an action for divorce pending between them, brought by the wife.

The State contends that when they separated Waggoner lived only two doors from his wife so that access was possible.

The Court of Appeals held:

1. A child born or begotten in lawful wedlock is presumed to be legitimate cannot be adjudged illegitimate unless it appears that the husband had no powers of procreation, or the circumstances were such as to render it impossible that he could be the father of the child. Powell v. State 84 OS 165.

2. On the ground of public policy, mere evidence of non access is not sufficient, and therefore the action of the court in ruling out evidence along that line is not prejudical error. Judgment of the lower court affirmed.