Samuel R. Liever, Leon Ehrlich, Reading, for appellant.
John E. Ruth, District Attorney, John V. Boland, Assistant District Attorney, Reading, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 17]
Defendant was convicted of willful neglect to support a child born out of lawful wedlock. A true bill was
[ 168 Pa. Super. Page 18]
returned on September 6, 1949. When the case came on for trial counsel for defendant moved to quash the indictment on the ground that it showed on its face that, more than two years having elapsed between the birth of the child and the return of the grand jury, the prosecution was barred by the statute of limitations. The motion was overruled and defendant then entered a plea of not guilty.
No notes of testimony were taken. The following facts appear in the opinion of the court below. The child was born May 23, 1946. Prosecutrix testified that she was married to one other than defendant at the time of the child's conception; that from June, 1945, to December, 1945, she and defendant had sexual relations approximately twice weekly; that defendant continued to visit her after the birth of the child; that in December, 1947, when confronted with the charge of paternity, defendant wrote prosecutrix an unsigned letter, admitted in evidence, suggesting a meeting for the settlement of their differences; that at Christmastime, 1948, he gave a doll and other toys and candies to the child; that in February, 1949, he called at a hospital where the child was confined with illness and gave prosecutrix $25 toward the expenses incident to that illness.
The mother of prosecutrix, with whom prosecutrix resided, testified that the prosecutrix's husband was in the service, stationed in Oklahoma, on and after June 12, 1945, and had not been home since that date; that in August, 1945, defendant agreed in her presence to marry prosecutrix if she would divorce her husband; that defendant visited her home two or three times weekly, often staying overnight and sleeping with prosecutrix, and that she, the witness, frequently prepared breakfast for him following such visits; that in February, 1949, at the hospital, she was shown, in defendant's
[ 168 Pa. Super. Page 19]
presence, the $25 contributed by him to prosecutrix.
The brother of prosecutrix testified that he lived in his mother's home from June to December of 1945 and at no time saw prosecutrix's husband; that during that period defendant called upon prosecutrix about three times a week and remained all night; that he heard defendant, at a hearing on a charge of fornication and bastardy, promise to marry ...