Appeal, No. 97, Oct. T., 1955, from judgment of Court of Quarter Sessions of Delaware County, Sept. T., 1954, No. 552, in case of Commonwealth of Pennsylvania v. Warren Watts. Judgment affirmed.
Stephen J. McEwen, with him Francis R. Lord, for appellant.
Ernest L. Green, Assistant District Attorney, with him Joseph E. Pappano, First Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.
Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).
[ 179 Pa. Super. Page 399]
The defendant was tried on an indictment charging fornication and bastardy. The prosecutrix testified that she had intercourse with defendant three times, the last time being sometime in September, 1953. The
[ 179 Pa. Super. Page 400]
child was born August 6, 1954. Defendant was found guilty, an order of support was entered, and defendant has appealed.
Appellant's primary contention is that the medical testimony was insufficient to sustain the conviction. The medical testimony was given by the doctor who delivered the child. She testified that the normal gestation period is nine months or 282 days, give or take two weeks either way. The defendant admitted having intercourse and asserted that the last time occurred on September 21, 1953. If the latter date is correct, the gestation period would have been almost 320 days. The prosecutrix testified that she did not have intercourse with any other man during the possible gestation period. Defendant now complains that even assuming conception on the last day of September, as from the testimony of prosecutrix, the gestation period would be 310 days, which is longer than any outside limit given by the medical witness.
The court charged the jury that the field of medicine has found that gestation can vary from 220 to 330 days, the average being 270 days. This charge is alleged to be error and defendant cites several cases to sustain his contention that the possible gestation period must be related to the testimony given. In Com. v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A.2d 836, a conviction of bastardy was reversed where the gestation period was allegedly 252 days and the only medical testimony gave a leeway of from 260 to 340 days. However, in that case the prosecutrix admitted relations with another man within the period given by the medical witness. The case at bar is thus distinguishable in that this prosecutrix denied having relations with others. The primary factor in a case of that type is that the jury will not be allowed to guess, nor the mother to choose, where more than one man could
[ 179 Pa. Super. Page 401]
be the father. Com. v. Young, 163 Pa. Superior Ct. 279, 60 A.2d 831. The Young case authorized the court to take judicial notice of accepted medical opinions in respect to duration of pregnancy, and the court below in this case used the same time span in its charge as that approved in Com. v. Young, supra. Defendant's other citation, Com. v. Rex, 147 Pa. Superior Ct. 121, 24 A.2d 98, is subject to the same distinctions in that there the mother had intercourse with others within the possible period. Further the medical witness in this case was never specifically asked for the medically accepted time span for the duration of pregnancies. Her remark that there could be a two weeks leeway in either direction was obviously a quick generalization. The pregnancy here occurred within the medically accepted time possibilities and the jury was properly charged.
It is also contended that the Commonwealth was precluded from proving a fruitful coition at a time other than that charged in the indictment. This was answered in Com. v. Blank, 79 Pa. Superior Ct. 49, in which we held that it was sufficient to prove illicit intercourse about the time the child must have been begotten in order to convict of bastardy.
The final assignment of error is the failure of the court below to instruct the jury that the defendant was charged with two separate crimes, fornication and bastardy. This issue was not raised in the court below and no exception was taken to the charge in this respect. In such event only fundamental error can be complained of on appeal. Com. v. DiCarlo, 174 Pa. Superior Ct. 611, 101 A.2d 410. The error here is not fundamental in view of the fact that the judge clearly and separately defined each offense.
Judgment of sentence and order of support affirmed.
[ 179 Pa. Super. Page 420]
CONCURRING OPINION BY RHODES, P.J.:
The majority opinion properly sustains the conviction of the defendant.
The dissenting opinion ignores the fact that the guilt or innocence of the defendant in this case turned on the credibility of the prosecutrix which was solely a matter for the jury.
Prosecutrix testified that she had relations with the defendant at least three times during the month of September, 1953,*fn1 and, further, that she had no relations with any other individual. Defendant admitted having relations with the prosecutrix as late as September 21st. He also testified that he saw the prosecutrix about the first or second of October. The testimony in this case, if believed, establishes the guilt of the defendant beyond a reasonable doubt. Credibility was solely for the jury. A reversal in this case, after the stamp of credibility has been attached to the prosecutrix' testimony by the jury, would result in this Court's taking unto itself the functions of the jury.
In Com. v. Young, 163 Pa. Superior Ct. 279, 283, 60 A.2d 831, 833, quoting from DeLee-Greenhill, Principles and Practice of Obstetrics, Eighth Edition (1943), in an opinion by Judge HIRT, we said: "'... pregnancy has been found to vary from two hundred and twenty to three hundred and thirty days, the average being two hundred and seventy days.'" Obviously, the possibility existed that the defendant in the present case was the father of the child. The length of time a pregnancy is extended beyond the average time for pregnancies may be a relevant matter for the jury to consider in its determination of credibility.
[ 179 Pa. Super. Page 421]
But, while the length of time involved may decrease the probabilities of a defendant's being the father, it does not affect the possibility of his being the father. The matter here is one entirely for the consideration of the jury.
The instant case is distinguishable from Com. v. Young, supra, 163 Pa. Superior Ct. 279, 60 A.2d 831, and Com. v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A.2d 836. In those cases the prosecutrix admitted having relations with someone other than the defendant during the period involved. As was correctly said in Com. v. Young, supra, 163 Pa. Superior Ct. 279, 283, 60 A.2d 831, 833: "But a prosecutrix may not be permitted to select one of two men as responsible if both of them had intercourse with her about the time that conception may have occurred." In the instant case, however, prosecutrix specifically denied having relations with anyone other than defendant during the time conception may have occurred, and her character is not otherwise questioned.
Defendant claims that the trial judge erred in his charge to the jury when he stated, in effect, that the period of gestation may vary from two hundred twenty to three hundred thirty days. This is a fact of which a court may take judicial notice. However, it should be noted that the court below merely repeated verbatim what we said in Com. v. Young, supra, 163 Pa. Superior Ct. 279, 60 A.2d 831. In my opinion, it was not error for the trial judge to quote from an applicable decision of this Court, but, even if it were, it was not prejudicial error requiring a reversal in this case.
[ 179 Pa. Super. Page 402]
DISSENTING OPINION BY WOODSIDE, J.:
I do not agree with the majority in this case.
The defendant was charged with bastardy. He should not have been convicted unless the evidence established his guilt beyond a reasonable doubt. It is my opinion that incontrovertible facts raise a reasonable doubt as to his guilt, - and that the true significance of these facts was not only withheld from the jury, but so presented as to mislead it.
The prosecutrix testified that she had sexual intercourse with the defendant three times during the month of September 1953, and not thereafter. A letter introduced by the Commonwealth indicates the defendant was in North Carolina and the prosecutrix in Pennsylvania during the last two days of September. The child was born August 6, 1954. That was 312 days after the 28th of the previous September.*fn1 At the hospital she gave her last menstrual period as October 27, 1953.*fn2 That was 283 days before the birth. She testified that she had sexual relations with no other men during September, October and November of 1953. She was not asked about December, the first day of which was 248 days before the birth.
[ 179 Pa. Super. Page 403]
There was no evidence concerning the length, weight or condition of the child at birth, and no evidence concerning the prosecutrix's pregnancy except that relating to her last menstrual period.*fn3
I should like to make it clear at the outset that I do not think it is impossible for this child to be the child of the defendant. I do think that the probability of its being his is so extremely remote that it raises a doubt which should permit a conviction only after the jury is fully advised of the improbability of such a protracted period of gestation.
The purpose of the trial in this case was to determine whether the defendant was the father of the child born to the prosecutrix, not whether he could have been. We are thus dealing with probabilities and not possibilities.
What are the chances of a birth being the result of sexual intercourse 312 or more days before the date of birth?
Not one chance in a million!
Although admittedly it cannot be known with mathematical certainty, an examination of the authorities and an analysis of the recorded cases of prolonged pregnancies indicate that a pregnancy of the length here supposed is not likely to happen one time in some millions of births.
Before considering any of the authorities on the duration of pregnancy we should note that time is computed
[ 179 Pa. Super. Page 404]
from the date of three different occurrences in the life of the mother; one is the first day of the last menstrual period, one is the time of intercourse, and one is the time of fertilization of the ovum. As the three occurrences usually take place on different dates, care should be taken not to confuse the number of days figured from the different occurrences. Both medical authorities and courts have been careless in their comparisons.
Computing from the last menstrual period is an inaccurate test of the actual time of conception, but it is the most practical way to predict the date of birth in most cases, and is the time recorded in ...