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COMMONWEALTH PENNSYLVANIA v. FRANCIS JOSEPH SMITH (01/14/55)

January 14, 1955

COMMONWEALTH OF PENNSYLVANIA
v.
FRANCIS JOSEPH SMITH, APPELLANT



Appeal, No. 287, Oct. T., 1954, from sentence of Court of Quarter Sessions of Philadelphia County, Nov. T., 1952, No. 362, in case of Commonwealth of Pennsylvania v. Francis Joseph Smith. Sentence affirmed.

COUNSEL

John Patrick Walsh, with him Leon Rosenfield, Philadelphia, for appellant.

Samuel Dash, Assistant District Attorney and Michael von Moschzisker, First Assistant District Attorney, with them Victor Wright, Assistant District Attorney and Richardson Dilworth, District Attorney, Philadelphia, for appellee.

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

Author: Rhodes

[ 177 Pa. Super. Page 404]

OPINION BY RHODES, P.J.,

This is an appeal by defendant from conviction and sentence entered in the Court of Quarter Sessions of Philadelphia County on a charge of fornication and bastardy.*fn1 Defendant's motions for a new trial and in arrest of judgment were dismissed, and thereupon sentence was imposed. Appellant's contentions relate to the dismissal of his motions.

Appellant questions the sufficiency of the evidence to warrant its submission to the jury. In our opinion a summary of the evidence clearly indicates that the guilt or innocence of appellant was for the jury to determine.

[ 177 Pa. Super. Page 405]

Although the evidence was conflicting, the Commonwealth established all of the elements of the crime charged. Hence, we may not substitute our judgment for that of the jurors. Com. v. Barrish, 297 Pa. 160, 165, 146 A. 553.

Prosecutrix testified that appellant had intercourse twice with her in a tourist cabin on May 26, 1951, or the early morning of May 27, 1951, as the result of which she became pregnant; and that a male child was born to her on February 16, 1952, at the Presbyterian Hospital in Philadelphia. She had known appellant for some time as a casual acquaintance. According to the Commonwealth's testimony, appellant met prosecutrix and her sister-in-law at the Media Athletic Club on May 26, 1951, at about 11:45 p.m. After dancing with the prosecutrix, appellant and the two women left the Media Athletic Club about 1:30 a.m. in appellant's car and visited another eating place. Appellant left the sister-in-law at her home, and then went with prosecutrix to a tourist cabin, where they remained until 6:30 a.m. Appellant then drove prosecutrix home. She was corroborated by her sister-in-law as to the events at the Media Athletic Club the evening of May 26, 1951. Though previously married to Richard L. Clark, prosecutrix testified she was "divorced" from him. The Commonwealth offered in evidence an exemplified copy of a decree of annulment of the Supreme Court of New York; it was entered September 23, 1946, and became final three months later. This was properly admitted in evidence. See Act of June 25, 1948, chap. 646, 62 Stat. 947, 28 U.S.C.A. 1738; Com. v. Joyce, 319 Pa. 507, 181 A. 481; Com. v. Cover, 281 Pa. 429, 126 A. 786. The use of the word "divorce" rather than "annulment" is immaterial. The marriage was dissolved by the decree, and there was no evidence to establish that the decree was

[ 177 Pa. Super. Page 406]

    not applicable to the prosecutrix and ...


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