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COMMONWEALTH v. MOSS (07/14/53)

July 14, 1953

COMMONWEALTH
v.
MOSS



COUNSEL

Ray E. Machen, Philadelphia, for appellant.

Michael von Moschzisker, First Asst. Dist. Atty., Armand Della Porta, Asst. Dist. Atty., Samuel Dash, Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

Rhodes, P.j., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ. Ross, Judge

Author: Per Curiam

[ 173 Pa. Super. Page 368]

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, GUNTHER and WRIGHT, JJ. ROSS, Judge.

James Moss was indicted for the crimes of assault and battery, aggravated assault and battery, assault and battery with intent to ravish, and rape at No. 15 April Sessions, 1952. A second indictment at No. 323 April Sessions, 1951 charged him with adultery. Jury trial was had on both indictments on May 9, 1952.

The prosecutrix, a child 15 years of age, testified that on September 24, 1951, the defendant was parked on 37th Street in Philadelphia. She stated that defendant,

[ 173 Pa. Super. Page 369]

    whom she had known for about a month, called her over to his car and 'asked me to come and keep Jeanette, this girl who used to take care of his two kids, to keep her company' in his apartment. The prosecutrix entered the automobile and defendant drove her to his home. He went into the apartment alone and when he came out again told the prosecutrix that 'Jeanette would be up there quite a while' and offered to drive her home. Instead of taking her home directly, however, he drove her 'up some dark street' and stopped the car. Prosecutrix testified: 'At the time he pulled me over the back of the seat, and I scratched him, I bit his lip when he tried to kiss me a couple of times. He pulled me over the back seat. He laid me across the back seat and he wiggled himself between my legs.' She stated that the defendant had sexual intercourse with her and that as a result thereof she became pregnant.

In support of the charge of adultery, the Commonwealth had only the testimony of the prosecutrix to the effect that the defendant had two children by a woman with whom he lived and whom he referred to as his wife. Defendant, on the other hand, denied that he was married, and the woman who shared his apartment, while admitting that she used his name and bore him two children, denied that she was married to him. The defendant admitted that the two children were his.

The jury found the defendant guilty of the charges contained in indictment No. 15 but acquitted him of the charge of adultery. Immediately after the jury had returned its verdict, counsel for defendant requested time for the filing of a motion for a new trial, and sentence was deferred. On May 12, 1952, the defendant filed his motion for a new trial but disposition of the motion was deferred to await the birth of the child

[ 173 Pa. Super. Page 370]

    and a blood test. Prosecutrix's child was born on July 1, and on December 3 the blood test was made, which did not ...


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