Appeal, No. 93, Oct. T., 1956, from judgment of Court of Quarter Sessions of Lancaster County, Dec. T., 1952, Complaint No. 98, in case of Commonwealth of Pennsylvania v. Joseph Boas, Jr. Judgment affirmed.
Bernard R. Cohn, for appellant.
Alfred C. Alspach, First Assistant District Attorney, with him William C. Storb, District Attorney, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ. (rhodes, P. J., absent).
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The defendant was found guilty after a trial before a jury on an indictment charging him with fornication
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and bastardy. He appeals from the refusal of the court below to grant a new trial, alleging that there was not sufficient competent evidence upon which the jury could base a verdict of guilty, that nine men mentioned by the defendant's witness should have been subpoenaed for trial and that the charge to the jury was erroneous.
The only witness for the Commonwealth was Sandra Ortleib, the prosecutrix, who testified that she met Joseph Boas, Jr. in July of 1951 and that she dated him regularly until he quit coming to see her when she told him she was pregnant in May of 1952. She stated that she had had intercourse with him "at least every week, I can't say how many times a week," from July of 1951 through the middle of May, 1952, and that during this period she had not been intimate with any other men. A child was born on January 19, 1953. The defendant took the stand and admitted having had illicit relations with her "all the time" and more specifically on May 17, 1952. His only defense was that in the month of May 1952, when, according to the testimony, conception took place, the prosecutrix had been intimate with other men. He himself had no knowledge of these alleged relations with others but called as his only witness Miss Kay Oster, a former friend of the prosecutrix, who testified that during the month of May, 1952, Sandra Ortleib had had intercourse with nine different men, all of whom she named. She said she had witnessed three of the acts, had been present when five more had occurred, and the prosecutrix had told her of another.
The defendant's argument on the facts is based on the well established principle that 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. However, where such relations with others are denied by the mother and proof of them
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rests upon the testimony of other witnesses, an issue is presented for the jury. Com. v. Sloan, 177 Pa. Superior Ct. 178; Com. v. Rex, 147 Pa. Superior Ct. 121; Com. v. M'Carty, 2 Clark 351. The contradictory testimony of the ...