Opinion
November 14, 1960.
December 14, 1960.
Criminal Law — Wilful neglect to support child born out of lawful wedlock — Indictment — Failure to recite date of intercourse — Offense separate and distinct — Quashing indictment — Time of motion — Entry of plea as waiver of defects — Evidence — Sufficiency — Reading date of child's birth from information.
1. On appeal by defendant following conviction of wilful neglect to support a child born out of lawful wedlock, defendant's contention, that the indictment should have been quashed because it did not recite the date of the intercourse causing conception, was Held to be without merit.
2. The misdemeanor proscribed by § 732 of The Penal Code of June 24, 1939, P.L. 872, is not fornication and bastardy but a separate and distinct offense.
3. Section 11 of the Act of March 31, 1860, P.L. 427, provides that objections to formal defects in indictments must be made before the jury is sworn.
4. Upon entering a plea a defendant waives any formal defect in the indictment.
5. It was Held that the evidence was sufficient to sustain the conviction.
6. It was Held that the trial Judge did not commit reversible error in permitting the district attorney to ask the prosecutrix to read from the information the date of the child's birth and to offer the information in evidence, where it appeared that the date was set forth in the indictment, was independently established by the testimony of another witness and, also, that the question was apparently not raised in the court below.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, WATKINS, and MONTGOMERY, JJ.
Appeal, No. 164, April T., 1960, from judgment of Court of Quarter Sessions of Westmoreland County, Jan. T., 1959, No. 231, in case of Commonwealth of Pennsylvania v. Gilbert P. Foust. Judgment affirmed.
Indictment charging defendant with wilful neglect to support child born out of lawful wedlock. Before O'CONNELL, P.J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
R.H. Buchman, for appellant.
Edward B. Doran, Assistant District Attorney, and Richard E. McCormick, District Attorney, for Commonwealth, appellee, submitted a brief.
Argued November 14, 1960.
Gilbert P. Foust was indicted and convicted in the Court of Quarter Sessions of Westmoreland County on a charge of wilful neglect to support a child born out of lawful wedlock. Section 732 of The Penal Code of June 24, 1939, P.L. 872, 18 Pa.C.S.A. § 4732. He filed motions for a new trial and in arrest of judgment. These motions were denied by the court en banc, and sentence was imposed. This appeal followed.
Appellant first contends that the indictment should have been quashed because it did not recite the date of the intercourse causing conception. There is no merit in this contention. The misdemeanor proscribed by the statute is not fornication and bastardy, but a separate and distinct offense: Commonwealth v. Bertram, 143 Pa. Super. 1, 16 A.2d 758. Furthermore, the motion to quash the indictment was not made until the conclusion of the testimony. Section 11 of the Act of March 31, 1860, P.L. 427, 19 P.S. 431, provides that objections to formal defects in indictments must be made before the jury is sworn. Upon entering his plea, appellant waived any formal defect in the indictment: Commonwealth v. Heintz, 182 Pa. Super. 331, 126 A.2d 498. And see Commonwealth v. Lingle, 120 Pa. Super. 434, 182 A. 802.
Appellant's second contention relates to the sufficiency of the evidence. We have carefully examined this original record. It discloses that, on October 9, 1957, Alice Belak, the prosecutrix, previously married and divorced, gave birth out of wedlock to a female child. Appellant admitted at the trial that he and Alice "went pretty steady", that they frequently had intercourse, that he had asked Alice to marry him, that he paid $225.00 toward the lying-in expense, that the child resembled him, and that he offered to support it. The prosecutrix testified that she had not had intercourse with anyone else. While the prosecutrix was below average intelligence, we are not in accord with appellant's argument that her testimony was too "vague". Her credibility was for the jurors. The controlling issues were submitted to them in an impartial charge, concerning which no complaint is made. We all agree with President Judge O'CONNELL that the verdict was fully warranted by the evidence and should not be disturbed. Cf. Commonwealth v. Cobb, 190 Pa. Super. 648, 155 A.2d 468.
Appellant's third and final contention is that the trial judge erred in permitting the district attorney to ask the prosecutrix to read from the information the date of the child's birth, and to offer the information in evidence. This question was apparently not raised in the court below. See Commonwealth v. Mays, 182 Pa. Super. 130, 126 A.2d 530. In any event, appellant made no issue of the date of birth. It is set forth in the indictment, and was independently established by the testimony of a sister of the prosecutrix. We perceive no error which would require the grant of a new trial.
Judgment affirmed.