92 Pa. Super. 124 | Pa. Super. Ct. | 1927
Argued November 18, 1927. The appellant was convicted and sentenced in the court below of wilful neglect and refusal to contribute *126 reasonably to the support and maintenance of a child born out of lawful wedlock, of which he was averred to be the father, the offense created by the Act of July 11, 1917, P.L. 773. The material averments of the indictment were as follows: that the defendant "on the twenty-sixth day of December, 1925, * * * unlawfully did have carnal knowledge of the body of a certain Ethel Clark, who then was, and now is a single woman, and a male bastard child on the body of her then and there did beget, which child was born in Bedford County, on the twenty-sixth day of September, one thousand nine hundred and twenty-six * * * and the said Wilson Mc. Evans has wilfully neglected and refused and so continues wilfully to neglect and refuse to contribute reasonably to the support of the said child born out of lawful wedlock."
When called for trial the defendant entered the plea of autrefois acquit, which plea the Commonwealth traversed, and to try the issue thus raised a jury was sworn. The plea of autrefois acquit consists of two kinds of matter. (1) Matter of record, namely, the former indictment and acquittal and before what justices, and in what manner, namely, by verdict or otherwise; and (2) Matter of fact, namely, that the prisoner is the same person that was acquitted, and the fact is the same of which he was acquitted, and whereof he is now indicted. There was no dispute as to the matters of fact involved in the disposition of the question; it was conceded that the defendant was the same person and that the present prosecution and the former indictment offered in evidence were based upon a single act of unlawful carnal intercourse. The record offered in evidence was No. 1 of November Term, 1926 of the Court of Oyer and Terminer of Bedford County, which established that the defendant had been tried on the first count of an indictment, which charged that he, "then and there being of the age of sixteen years and upwards, in and upon one Ethel F. Clark, then and *127 there being a woman child, under the age of sixteen years, to wit, of the age of fourteen years, feloniously did make an assault, and her, the said Ethel F. Clark, then and there feloniously, unlawfully and carnally did know and abuse, and a male bastard child on the body of her, the said Ethel F. Clark, did beget, which child was born in the said County of Bedford, on the twenty-sixth day of September, in the year one thousand, nine hundred and twenty-six;" to which charge the defendant had entered the plea of not guilty and the verdict of the jury was "We find the defendant guilty of rape;" and upon that verdict the court sentenced the defendant. The learned judge of the court below held that the evidence "being entirely documentary, we are satisfied that this proceeding under the Act of 1917 has not been barred by the proceedings in evidence here offered by the defendant in issue joined by the parties; we therefore direct a verdict for the Commonwealth." The defendant took an exception to this ruling and here assigns it for error. The trial then proceeded on the defendant's plea of not guilty and resulted in a verdict of guilty as indicted and the court sentenced the defendant; whereupon the latter took this appeal.
The single count of the first indictment upon which the defendant was tried contained a divisible averment. It, in proper form, charged not only statutory rape but bastardy; that the defendant was the father of the illegitimate child in question. The bastardy was but an aggravation of the principal offense charged. It was proper to so charge the offense and the indictment was valid: Com. v. Lewis,
The judgment is reversed and the defendant is discharged without day.