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COMMONWEALTH v. SHAVINSKY (12/29/53)

December 29, 1953

COMMONWEALTH
v.
SHAVINSKY



COUNSEL

David S. Palkovitz, Robert Palkovitz, Jack Palkovitz, McKeesport, for appellant.

Albert A. Fiok, Asst. Dist. Atty., James F. Malone, Jr., Dist. Atty., Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright and Woodside, JJ.

Author: Woodside

[ 174 Pa. Super. Page 274]

WOODSIDE, Judge.

The only question presented in this appeal is the meaning of the expression 'born out of lawful wedlock' as contained in Sec. 732 of The Penal Code of June 24, 1939, P.L. 872, 18 P.S. ยง 4732.

The section reads as follows:

Section 732. 'Neglect to support bastard. Whoever, being a parent, wilfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, whether within or without this Commonwealth, is guilty of a misdemeanor'.

The appellant was convicted of violating this section.

He subsequently filed a motion for a new trial and a motion in arrest of judgment. The motion for a new trial was granted on the ground that the prosecutrix was permitted, over objection of defendant's counsel, to present incompetent testimony as to 'non-access' by her husband during the period of conception and birth of the children; but the motion in arrest of judgment was denied, from which denial this appeal was taken.

[ 174 Pa. Super. Page 275]

It is his contention that the children found by the jury to be his were not 'born out of lawful wedlock' because at the time of their birth their mother was married to another man. He argues that 'a 'child born out of wedlock' means a child born while its mother is an unmarried woman.' He cites no case which holds that a child is born within lawful wedlock when its mother is married to one other than the proven father of the child, and we have been able to find no such case.

A 'child born out of lawful wedlock' as used in the above section means a child born when his father and mother were ...


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