Summary
In Commonwealth v. Dean, 172 Pa. Super. 415, 94 A.2d 59, which involved a prosecution for fornication and bastardy, we held that a petition for blood grouping tests, presented thirty-eight days after final judgment, came too late.
Summary of this case from Commonwealth v. HunscikOpinion
October 3, 1952.
January 20, 1953.
Criminal law — Fornication and bastardy — Paternity cases — Evidence — Blood grouping tests — Petition after verdict — Act of May 24, 1951, P. L. 402.
In a prosecution for fornication and bastardy, in which it appeared that defendant, thirty-eight days after conviction and sentence, filed a petition for a blood grouping test under the Act of May 24, 1951, P. L. 402 (which provides that in any proceeding to establish paternity, the court, on motion of the defendant, shall order the mother, her child, and the defendant to submit to a blood grouping test, and that the results of such tests may be received in evidence where definite exclusion of the defendant is established), it was Held that the court below properly denied the petition.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 162, Oct. T., 1952, from order of Municipal Court of Philadelphia County, November Sessions, 1951, No. 283, in case of Commonwealth of Pennsylvania v. Henry Dean. Order affirmed.
Proceeding upon petition of defendant for order upon prosecutrix and her child to submit to blood grouping test.
Order entered refusing petition, opinion by PIEKARSKI, J. Defendant appealed.
James M. Wolfson, for appellant.
Samuel Dash, Assistant District Attorney, with him Michael von Moschzisker, First Assistant District Attorney, Malcolm Berkowitz, Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.
Argued October 3, 1952.
On April 29, 1952, the defendant, Henry Dean, was convicted by a jury on a charge of fornication and bastardy, and on the same day — no motion for new trial or arrest of judgment having been made — was, inter alia, ordered by the court to contribute to the support of the child. The defendant entered bond for compliance with the order of support.
On June 6, 1952, he filed a petition for a blood grouping test under the provisions of the Act of May 24, 1951, P. L. 402, 28 PS sec. 306, which provides: "In any proceeding to establish paternity, the court, on motion of the defendant, shall order the mother, her child and the defendant to submit to one or more blood grouping tests by a duly qualified physician to determine whether or not the defendant can be excluded as being the father of the child, and the results of such tests may be received in evidence but only in cases where definite exclusion of the defendant is established." The court below refused to grant the prayer of the petition on the ground that it was too late and the defendant took this appeal. The appeal is devoid of merit and the order of the court below will be affirmed.
It will be noted that defendant's petition was presented 38 days after final judgment. He contends that since it was filed within the time allowed for taking an appeal to this Court, it was timely, his argument being that when the legislature used the word "proceeding" it meant that a motion for blood tests might be made at any time before final determination, i.e., from preliminary hearing to final disposition by an appellate court.
Without question, the word "proceeding", standing alone, is broad enough to cover each step or all steps in a criminal action from commencement to final termination. The inquiry is, however, at what stage of the proceeding did the legislature intend that a defendant should file his motion for a blood grouping test. The answer, it seems to us, is perfectly obvious. The purpose of compelling the mother and child to submit to such tests is to provide the defendant with results which may, if they exculpate him, "be received in evidence". That purpose could be accomplished only if the tests were made and the results available at the trial. It is certain that the legislature never intended to grant the defendant the right to reopen the trial 38 days after a verdict and sentence entered thereon.
Order affirmed.