Appeal, No. 301, Oct. T., 1954, from judgment of Court of Quarter Sessions of Northampton County, Sept. T., 1953, No. 22, in case of Commonwealth of Pennsylvania v. Herman Heatter. Judgment affirmed.
F. Logan, with him Robert C. Duffy, Thomas C. Egan and Nathan Reibman, Philadelphia, for appellant.
Alfred M. Nittle, Assistant District Attorney, with him Elias W. Spengler, District Attorney, Easton, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 177 Pa. Super. Page 375]
Defendant was charged, in the language of § 722 of The Penal Code of June 24, 1939, P.L. 872, 18 PS § 4722 with assault and battery upon one Miriam E. Blose, with intent forcibly and against her will, to have
[ 177 Pa. Super. Page 376]
unlawful carnal knowledge of her. He was found guilty as indicted and was sentenced. The defendant in the court below presented his motion in arrest of judgment, alleging that the evidence was insufficient to sustain the charge; and in the alternative he moved for a new trial on the ground the trial judge neglected to charge the jury that the defendant could be found guilty under the indictment of the lesser crimes of indecent assault or of mere assault and battery. A review of the testimony, of necessity somewhat in detail, will demonstrate that the lower court properly refused both motions.
Miriam E. Blose, a woman whose character and reputation have not been questioned, is a widow who lives with her two young children and her daughter-in-law in a rural section of Lehigh Township. Their bedrooms are all on the second floor of the house. About 3 o'clock in the morning of September 1, 1953, the defendant pushed up the lower sash of an unlocked first-floor window and climbed through it into the house and then went up the stairway to the upper floor. The house was completely dark at that time except for a small night light in the room of Alberta Blose, the daughter-in-law. Miriam Blose was awakened by the defendant who came upon her bed and put his hands on her legs. He crawled upon her and she testified "he had his private part against mine to have intercourse." She tried to get up but he held her down by her shoulders. She was successful however in preventing penetration. Her nine-year-old daughter who slept with her, when awakened by the acts of the defendant, left the bed and called to her sister Susan in a bedroom across the hall. Susan turned on a hall light and through the open door saw the defendant on top of her mother who then was trying to push him off. In outraged anger she called to defendant "to get
[ 177 Pa. Super. Page 377]
off her." When defendant finally did desist, Mrs. Blose and her children all went into the room of the daughter-in-law and barricaded the door. The defendant tried unsuccessfully to get into that room. They later heard the defendant go to the floor below and because they were convinced that he had not left the house, one of the daughters was lowered to the ground from a second story window. She went to a neighbor's house and the State police as well as the township police were called from there. We have referred to the man who molested Mrs. Blose as the defendant although he was not identified until the police arrived at the house about 4:30 a.m. They found him, either asleep or feigning sleep, sitting on a davenport in the living room. When aroused, he acted, again either sincerely or as a pretense, as though he believed that he was in his own home. At the trial the defendant took the stand but he neither admitted nor denied the charge of the indictment. He testified that between four in the afternoon and midnight of the day in question he had been drinking with friends and had consumed in all, 18 bottles of beer; and that after he left them he met up with a stranger at a gas station and went with him to a hotel in Slatington and there drank ten or twelve additional bottles of beer. He stated that when he went to his automobile, on leaving the hotel, "that is the last I remember until I woke up in the yard of Mrs. Blose [at about 4:30 a.m.] where the State cop had been twisting my arm." He ...