Summary
In Commonwealth v. Hunscik, 182 Pa. Super. 639, 128 A.2d 169 (1956), where a blood grouping test excluded the defendant, we granted a new trial (with one judge favoring the arrest of judgment).
Summary of this case from Commonwealth v. CoyleOpinion
November 15, 1956.
December 28, 1956.
Criminal law — Fornication and bastardy — Evidence — Blood grouping tests — Conclusiveness — Persistence of prosecutrix in charge — Section 506 of The Penal Code — Act of May 24, 1951, P. L. 402.
1. In a prosecution for fornication and bastardy, evidence presented by defendant that blood grouping tests exclude him as the child's father does not require that the trial judge direct a verdict of not guilty.
2. The Act of May 24, 1951, P. L. 402, does not accord conclusive effect to blood grouping tests; it provides merely that such tests "may be received in evidence".
3. The purpose of § 506 of the Penal Code of June 24, 1929, P. L. 872, as amended (which provides, in part, that any man charged by an unmarried woman with being the father of her bastard child shall be the reputed father, and if she persists in the charge in the time of her extremity of labor or afterwards in open court, the same shall be given in evidence in order to convict him of fornication) is to enlarge, not limit, the scope of the testimony.
4. Section 506 of The Penal Code makes competent declarations which would, under the general rules of evidence, be inadmissible.
5. A contention by defendant that he was entitled to an acquittal for the reason that the prosecutrix, who made the information, had failed to persist in her charge, either in the extremity of labor or afterwards in court, was Held to be without merit.
6. On appeal by defendant following conviction and sentence on an indictment charging him with fornication and bastardy, it was Held that (a) the trial judge did not err in refusing to direct a verdict of not guilty on the ground that evidence of blood grouping tests presented on behalf of defendant excluded him as the father of the child, but that (b) in the particular circumstances, especially the fact that the testimony of the prosecutrix was not entirely satisfactory, a new trial should be granted in the interest of justice.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.
Appeal, No. 167, April T., 1956, from judgment of sentence of Court of Quarter Sessions of Peace of Westmoreland County, July T., 1955, No. 223, in case of Commonwealth of Pennsylvania v. Joseph John Hunscik. Judgment reversed and new trial awarded.
Indictment charging defendant with fornication and bastardy. Before BAUER, J.
Verdict of guilty and judgment of sentence thereon. Defendant appealed.
James Gregg, with him Albert M. Nichols, and Portser, Gregg Nichols, for appellant.
John K. Best, Assistant District Attorney, with him L. Alexander Sculco, District Attorney, for appellee.
ERVIN, J., would reverse, and discharge the appellant.
Argued November 15, 1956.
Joseph John Hunscik was indicted in the Court of Quarter Sessions of Westmoreland County on the charge of fornication and bastardy. At the trial the prosecutrix testified that the defendant had intercourse with her on several occasions, the last of which was September 25, 1954, the date of conception; that she did not have intercourse with any other man during that period of time; and that she was delivered of a female child on July 12, 1955. The defendant did not testify. He called one witness, Dr. Walter W. Jetter, an eminent pathologist, who had made blood grouping tests which excluded the defendant as father of the child. Defendant presented points for charge requesting binding instructions which the trial judge refused. The jury returned a verdict of guilty. Motions in arrest of judgment and for a new trial were overruled. Sentence was imposed. The defendant has appealed.
Appellant advances two contentions, one of which was not raised in the court below, see Commonwealth v. Mays, 182 Pa. Super. 130, 126 A.2d 530. However, we will dispose of it briefly. Appellant argues that he is "entitled to an acquittal" for the reason that "the prosecutrix who made the information failed to persist in her charge, either in the extremity of labor or afterwards in Court". He relies upon Section 506 of The Penal Code, Act of June 24, 1939, P. L. 872, as amended, 18 P.S. 4506, which provides, inter alia: "Any man charged by an unmarried woman with being the father of her bastard child, shall be the reputed father and if she persists in the charge in the time of her extremity of labor, or afterwards in open Court, the same shall be given in evidence in order to convict such person of fornication". The purpose of this statutory language is to enlarge, not limit, the scope of the testimony: Commonwealth v. McFeaters, 100 Pa. Super. 169. It makes competent declarations which would, under the general rules of evidence, be inadmissible: Commonwealth v. Losey, 79 Pa. Super. 75. And see Commonwealth v. Deysher, 139 Pa. Super. 497, 12 A.2d 492. In the case at bar, the information sworn to by the prosecutrix expressly charged that appellant was the father of the child, and her testimony in open court was intended to support that charge.
Appellant's principal contention is that, since he was excluded as the child's father by the blood grouping tests, the trial judge "must direct a verdict of not guilty". This contention is based upon the provisions of the Act of May 24, 1951, P. L. 402, 28 P.S. 306, which reads as follows: "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" (italics supplied).
The Act of 1951 has been before us in three cases. 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. In Commonwealth ex rel. O'Brien v. O'Brien, 182 Pa. Super. 584, 128 A.2d 164, we held that the term "proceeding to establish paternity" does not include an action for the support of a minor child born during wedlock, hence the defendant in such an action cannot require blood grouping tests. In Commonwealth v. Wright, 178 Pa. Super. 181, 113 A.2d 724, the defendant was charged with fornication and bastardy and blood grouping tests excluded him as father of the child. Following a verdict of guilty, the defendant moved in arrest of judgment and for a new trial. The court below dismissed the motion in arrest of judgment but granted a new trial. The six judges of this court who heard the argument being equally divided in opinion, the order of the court below granting a new trial was affirmed. The Supreme Court allowed an allocatur but subsequently quashed the appeal on the ground that it was taken prior to sentence: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492. In his opinion, however, Mr. Justice ARNOLD made the following significant statement: "But the sufficiency of the evidence must be tested according to the Commonwealth's evidence. This amply sustained the charge and the court was without power to discharge the defendant".
The Act of 1951 does not accord to blood grouping tests the conclusive effect for which appellant contends. The statute merely provides that such tests "may be received in evidence". It is therefore entirely clear that the trial judge in the case at bar cannot be charged with error in refusing to give binding instructions, and that the action of the court en banc in overruling the motion in arrest of judgment must be affirmed.
On the other hand, we have concluded that a new trial should be granted in the interest of justice. In this connection we note that the testimony of the prosecutrix was not entirely satisfactory. This circumstance is not without significance in the light of the testimony of appellant's medical witness. Indeed the conviction was so questionable that, when he imposed sentence, the trial judge said: "The verdict was so clearly in the teeth of the evidence that the prosecutrix should have no benefit from it. It is also important that similar cases will not be permitted to be a source of revenue to a woman who deserves nothing by the verdict of the Jury".
Judgment reversed and new trial awarded.
ERVIN, J., would reverse and discharge the appellant.