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COMMONWEALTH v. SHAVINSKY (01/17/56)

January 17, 1956

COMMONWEALTH
v.
SHAVINSKY, APPELLANT.



Appeal, No. 114, April T., 1955, from order of Court of Quarter Sessions of Allegheny County, Jan. T., 1953, No. 292, in case of Commonwealth of Pennsylvania v. Emory Shavinsky. Order affirmed.

COUNSEL

David S. Palkovitz, with him Robert Palkovitz and Jack Palkovitz, for appellant.

Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.

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

Author: Woodside

[ 180 Pa. Super. Page 523]

OPINION BY WOODSIDE, J.

This is an appeal from the refusal of the Court of Quarter Sessions of Allegheny County to grant the defendant's motions in arrest of judgment and for a new trial after his conviction by a jury and sentence on a charge of failure to support three children born out of lawful wedlock in violation of Section 732 of The Penal Code of June 24, 1939, P.L. 872, 18 PS ยง 4732.

After a prior conviction on the same indictment the lower court granted a motion of the defendant for a new trial on the ground that the prosecutrix was permitted to present incompetent testimony as to non-access by her husband, but refused his motion in arrest of judgment. Upon appeal to this court by the defendant we affirmed the refusal of the court below to grant the motion in arrest of judgment (174 Pa. Superior Ct. 273, 101 A.2d 178 (1953)).

[ 180 Pa. Super. Page 524]

After conviction at the second trial the defendant was sentenced to pay the sum of $5 per week for each of the three children.

Counsel for the appellant has argued exhaustively that the children were not "born out of lawful wedlock" because at the time of their birth their mother was married. That was the sole question presented to us in the first appeal and was decided against the defendant. The Supreme Court refused an allocatur and refused appellant's petition to reconsider its refusal to grant the allocatur; 175 Pa. Superior Ct. xxvi. We see no reason to discuss the point further.

The appellant also contends that the trial court erred in refusing defense counsel the right to argue to the jury the consequences of the bastardization of children and to describe its legal effect upon the children involved. As to this the lower court said in its opinion: "We can conceive of no proper purpose in such an explanation which would be relevant in the determination of this case. The court carefully explained that a verdict of guilty would bastardize these children; a further discourse regarding the consequences of bastardization would be of no aid in resolving the issues of fact here presented, and is clearly without the scope of proper argument."

The propriety and extent of counsel's arguments to the jury are to be determined by the trial court and his rulings thereon are reviewable for abuse of discretion only. Clark v. Essex Wire Corp., 361 Pa. 60, 65, 63 A.2d 35 (1949); Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 509, 103 ...


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