Commonwealth v. Watts

116 A.2d 844, 179 Pa. Super. 398, 1955 Pa. Super. LEXIS 644

• Court: Superior Court of Pennsylvania
• Decided: September 30, 1955
• Docket: Appeal, 97
• Status: Published

Opinions

Opinion by

Gunther, J.,

The defendant was tried on an indictment charging fornication and bastardy. The prosecutrix testified that she had intercourse with defendant three times, the .last time being sometime in September, 1953. The child was born Angnst 6, 1954. Defendant was found guilty, an order of support was entered, and defendant has appealed.

Appellant’s primary contention is that the medical testimony was insufficient to sustain the conviction. The medical testimony was given by the doctor who delivered the child. She testified that the normal gestation period is nine months or 282 days, give or take two weeks either way. The defendant admitted having intercourse and asserted that the last time occurred on September 21, 1953. If the latter date is correct, the gestation period would have been almost 320 days. The prosecutrix testified that she did not have intercourse with any other man during the possible gestation period. Defendant now complains that even assuming conception on the last day of September, as from the testimony of prosecutrix, the gestation period would be 310 days, which is longer than any outside limit given by the medical witness.

The court charged the jury that the field of medicine has found that gestation can vary from 220 to 330 days, the average being 270 days. This charge is alleged to be error and defendant cites several cases to sustain his contention that the possible gestation period must be related to the testimony given. In Com. v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A. 2d 836, a conviction of bastardy was reversed wheré the gestation period was allegedly 252 days and the only medical testimony gave a leeway of from 260 to 340 days. However, in that case the prosecutrix admitted relations with another man within the period given by the medical witness. The case at bar is thus distinguishable in that this prosecutrix denied having relations with others. The primary factor in a case of that type is that the jury will not be allowed to guess, nor the mother to choose, where more than one man could be the father. Com. v. Young, 163 Pa. Superior Ct. 279, 60 A. 2d 831. The Young ease authorized the court to take judicial notice of accepted medical opinions in respect to duration of pregnancy, and the court below in this case used the same time span in its charge as that approved in Com. v. Young, supra. Defendant’s other citation, Com. v. Rex, 147 Pa. Superior Ct. 121, 24 A. 2d 98, is subject to the same distinctions in that there the mother had intercourse with others within the possible period. Further the medical witness in this case was never specifically asked for the medically accepted time span for the duration of pregnancies. Her remark that there could be á two weeks leeway in either direction was obviously a quick generalization. The pregnancy here occurred within the medically accepted time possibilities and the jury was properly charged.

It is also contended that the Commonwealth was precluded from proving a fruitful coition at a time other than that charged in the indictment. This was answered in Com. v. Blank, 79 Pa. Superior Ct. 49, in which we held that it was sufficient to prove illicit intercourse about the time the child must have been begotten in order to convict of bastardy.

The final assignment of error is the failure of the court below to instruct the jury that the defendant was charged with two separate crimes, fornication and bastardy. This issue was not raised in the court below and no exception was taken to the charge in this respect. In such event only fundamental error can be complained of on appeal. Com. v. DiCarlo, 174 Pa. Superior Ct. 611, 101 A. 2d 410. The error here is not fundamental in view of the fact that the judge clearly and separately defined each offense.

Judgment of sentence and order of support affirmed.