52 Pa. Super. 619 | Pa. Super. Ct. | 1913
Opinion by
The defendant was tried, convicted and sentenced on an indictment charging him with fornication and bastardy. This is the second trial on said indictment. The first trial resulted in a verdict of guilty, but for reasons with which we are not now concerned the learned court set aside the verdict and granted the defendant a new trial.
The case was made out on the part of the commonwealth by the testimony of the prosecutrix and the production of the child which, she said, was a bastard and that the defendant was its father. The learned court
We have referred thus to the charge because it is complained of in the assignments of error, while in our opinion it was entirely fair, and the jury must have believed the prosecutrix and have satisfactorily, to them, disposed of the contradictions in the testimony of the prosecutrix at the two trials and they must have absolutely disbelieved the three young men who were willing to go on the stand and testify to their own shameful conduct.
We are unable to discover any merit in the assignments of error. The learned counsel for the defendant asked for a binding instruction for a verdict of acquittal because, as he argues, the prosecutrix testified falsely and committed perjury in regard to the place where the sexual intercourse took place. The learned counsel cites the maxim “ falsus in uno, falsus in omnibus,” and bases an argument on this theory in support of his request for a binding instruction.
When a prosecutrix takes the witness stand; produces a bastard child; testifies that it is hers; that the defendant is its father; states the time and place when and where the sexual intercourse took place; and the child is born at or about the proper time from the date at which she fixed the intercourse, we consider it a novel proposition for the defendant’s able and experienced counsel to criticise the court for not giving a binding instruction in favor of the defendant. We entertain no doubt that it was the duty of the court to submit all of the testimony to the jury and we have already said that this was done in an adequate and impartial charge. It may seem somewhat remarkable,
The learned and experienced counsel for defendant complains in his argument that the court below erred in not instructing the jury that they had the right to convict the defendant of fornication alone, although he was charged with fornication and bastardy, and his fifth assignment of error seeks to raise this question. But the court was not asked to so instruct the jury. It is quite probable that the experienced counsel thought best to let the case go to the jury, as the court presented it, without having the jury instructed that if they believed the defendant had sexual intercourse with the prosecutrix but were not satisfied that he was the father of the child, they might bring in a verdict of fornication alone. If the able counsel had desired the case presented to the jury in that way, it cannot be doubted that he would have been on his feet in an instant when the charge closed asking for such instruction. But having made such a strong defense it is quite probable that he wanted the case to go to the jury, if it had to go at all, just as the court presented it.
“A party may not sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless:” Com. v. Razmus, 210 Pa. 609; Penna. R. R. Co. v. Donora S. R. R. Co., 219 Pa. 361; Slavin v. North Cambria St. Ry. Co., 47 Pa. Superior Ct. 454.
While the evidence does seem somewhat strong in favor of the defendant, yet all of the questions of fact raised by the testimony were for the consideration of the jury, and after the verdict was rendered the defendant’s learned counsel made a motion for a new trial and the testimony was reconsidered by the court and a new trial
The six judges who heard this argument agree that the judgment ought to be affirmed.
The assignments of error are dismissed and the judgment is affirmed.