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November 12, 1952



Harry P. Creveling, Allentown, David Freeman, Philadelphia, for appellant.

Bernard B. Naef, Asst. Dist. Atty., Allentown, M. Jack Morgan, Dist. Atty., Allentown, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.

Author: Hirt

[ 172 Pa. Super. Page 104]

HIRT, Judge.

Defendant was convicted of sodomy, committed with one Kathryn Hrinkovich as charged in Bill 20, and also of sodomy on two occasions upon Eva Dora Daniels, charged in Bill 19. The Daniels girl then was but 15 years old, and the defendant in a third indictment, Bill 21, was charged with contributing to her delinquency. As to her the jurisdiction of the Juvenile Court had attached, Cf. Commonwealth v. Wink, 170 Pa. Super. 96, 103, 84 A.2d 398, and the defendant was convicted also of this charge. Prison sentences, to run concurrently, were imposed in each case.

On information obtained from the Daniels girl, the defendant was brought to Police Headquarters in Allentown on August 4, 1951, and there was confronted by her. She stated in his presence that he had committed sodomy upon her on June 18 and again on July 8, 1951. The defendant thereupon made a voluntary statement in which he admitted the crimes. He was examined by the chief of police and an assistant district

[ 172 Pa. Super. Page 105]

    attorney. The questions put to him and his answers, which constitute his statement, were reduced to writing. He read the transcript of the stenographic notes and he attached his signature to it.

Defendant in his statement also admitted that, on another occasion, he committed sodomy with Kathryn Hrinkovich, the subject of Bill 20. It is here argued that his conviction on that charge must be set aside for want of proof of the corpus delicti. There is no merit in the contention. His conviction does not rest on his confession alone. Kathryn Hrinkovich was also brought to police headquarters on August 4, and there in defendant's presence stated that she had committed sodomy with him on the date subsequently laid in Bill 20. Thus, both she and he admitted that the crime had been committed and their admissions in the presence of each other that they joined in the commission of the offense met every essential element of proof of the crime. As to the proof required to establish the corpus delicti generally, Cf. Commonwealth v. Dolph, 164 Pa. Super. 415, 419, 65 A.2d 253. Kathryn Hrinkovich was later indicted on a charge of sodomy committed with this defendant. But the appellant's offer to prove testimony given by her at the preliminary hearing, before a Justice of the Peace on that charge to the effect that she did not know the defendant, did not affect the probative value of her admission of the crime in defendant's presence on the earlier date of August 4th. The court properly sustained the Commonwealth's objection to defendant's offer of proof of her testimony before the magistrate on the charge against her. In the present trial of the defendant Kathryn Hrinkovich, when called, asserted her constitutional privilege and refused to testify. The incriminating statement of Kathryn Hrinkovich on August 4th in the presence of defendant, which the jury accepted

[ 172 Pa. Super. Page 106]

    as proven, called for challenge and contradiction by the defendant and his failure then to deny the commission of sodomy with her, in itself was evidence as an implied admission of the truth of the charge. Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889; Commonwealth v. Kaysier, 166 Pa. Super.Ct. 369, 71 A.2d 846; Commonwealth v. Weigand, 134 Pa. Super. 603, 5 A.2d 385. Here, in addition to the proof of direct accusation of crime made in defendant's presence, undenied by him, the jury accepted defendant's written admission of sodomy with Kathryn Hrinkovich as a confession voluntarily given.

In addition to confessing to sodomy with the Daniels girl and Kathryn Hrinkovich, the defendant in his statement of August 4, admitted sodomy with one Arlene Poandl on an earlier occasion. He was not indicted for that offense. The fact that his confession and statement to the police contained an admission of an offense other than those on trial did not in itself render the statement inadmissible as a whole. This rule obtains even where the additional offense admitted in a confession is unrelated to the charges on trial. Commonwealth v. Hipple, ...

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