Appeal, No. 195, April T., 1954, from order of Court of Quarter Sessions of Allegheny County, June T., 1953, No. 214, in case of Commonwealth of Pennsylvania v. Jay Sloan. Judgment affirmed.
George S. Goldstein, Pittsburgh, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, and Mord C. Taylor, Assistant District Attorney, Pittsburgh, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
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The defendant was convicted of fornication and bastardy. Motions in arrest of judgment and for a new trial were refused and the defendant appealed.
The principal question presented to us for decision is the competency of the prosecutrix to testify. It is argued by defendant that the prosecutrix admitted intercourse with another man about the time conception could have occurred and therefore she was not a competent
[ 177 Pa. Super. Page 180]
witness to prove that the defendant was the father. We have no complaint with this principle of law. It was well stated by Judge HIRT in Com. v. Rex, 147 Pa. Superior Ct. 121, 123, 24 A.2d 98, in the following language: "Where bastardy is charged, a fact extremely important in the inquiry is whether the mother of the child had connection with others than the defendant at or about the time the child was begotten. If so, it is impossible for her to determine to which of them her conception is to be imputed. Com. v. Fritz, 4 Clark 219. The admission of a number of connections at about the time of conception destroys her competency as a witness to prove that the defendant is the father. It is only where such relations with others are denied by the mother and the proof of them rests upon the testimony of other witnesses that an issue for the jury is presented. Com. v. McCarthy, 2 Clark 351; Com. v. Eaby, 52 Pa. Superior Ct. 619." See also Com. v. Young, 163 Pa. Superior Ct. 279, 283, 60 A.2d 831; Com. v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A.2d 836.
In this case, however, the prosecutrix did not admit intercourse with any other man during the period when conception could have occurred. On the contrary, she denied it. Defendant's argument is based upon the following facts: When the prosecutrix's mother discovered her condition she told her, allegedly because of threats from Sloan, that she had been forcibly attacked by a neighbor, one Thomas Jewell, Jr:, Mr. Jones, the father, swore out an information against Jewell, who was subsequently indicted and brought to trial; at the proceedings before KENNEDY, J. the prosecutrix stated that although Jewell tried by force to ravish her, she successfully resisted his attack, whereupon the case against him was discharged. She repeated the same story at the hearing before the Justice
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of the Peace and she told the same story in the present trial. As stated in the opinion of the lower court, "Her testimony in the instant case reiterates the story, and seems to indicate some confusion on her part as to the distinctions between 'rape' in its dictionary meaning, and in its legal sense." One of the definitions in Webster's New International Dictionary, 2nd ed., unabridged, is "Act or an instance of seizing and carrying away by force; violent seizure." Her testimony in this connection is as follows: "A. What would you call rape - when a fellow tries to take a girl out - Q. You have been telling us he didn't penetrate you. Now, you say he raped you. ...