Rutter, O'Donnell & Mauger, L. Stanley Mauger, all of Pottstown, for appellant.
J. Stroud Weber, District Attorney, Roger B. Reynolds, Assistant District Attorney, Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 167 Pa. Super. Page 280]
The defendant was tried and convicted on an indictment charging that 'on or about the 15th day of April' in 1949, he committed sodomy with one John Yerger. The evidence of the Commonwealth consisted of the testimony of Yerger, a written confession made by the
[ 167 Pa. Super. Page 281]
defendant and the testimony of certain police officers. The defendant, in addition to denying the offense, attempted to establish an alibi.
Yerger testified that the offense occurred at various times 'during the spring of 1949'. Defendant contends that this testimony as to time of the offense is too indefinite to support a conviction under an indictment averring that the offense occurred 'on or about the 15th day of April' 1949, and that Yerger's testimony should have been stricken from the record. If this were the only testimony in the case, there might be some force to this argument. However, a confession signed by the defendant and admitted in evidence, stated that the offense occurred 'sometime in April 1949' and the police officer who was present when the confession was signed testified that the defendant stated orally that the offense was committed 'about the middle of April' in 1949.
In the prosecution of sodomy or other crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth is not required to prove the commission of the offense charged on the date laid down in the indictment, but failing in that, it has the burden, in order to sustain a conviction, of proving the commission of the crime upon some other date, fixed with reasonable certainty and being within the prescribed statutory period. Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97; Commonwealth v. Neff, 149 Pa. Super. 513, 27 A.2d 737.
'In the laying of time, any date may be fixed within the statutory period, and the averment will be supported by proof that the offense occurred at another date within that time, unless time is an element of the crime charged, as in violation of Sunday laws'. Sadler's Criminal Procedure in Pennsylvania, (Second Edition, 1937) Sections 232 and 345; Maurer's Notes on Criminal Law, Vol. I, Date, notes 1151-1165, pages 292-294; Commonwealth v.
[ 167 Pa. Super. Page 282]
Polin, 140 Pa. Super. 18, at pages 24 and 25, 12 A.2d 798, and cases cited.' Commonwealth v. Levy, supra, 146 Pa. Super. ...