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COMMONWEALTH v. SMIHAL (11/13/56)

November 13, 1956

COMMONWEALTH
v.
SMIHAL, APPELLANT.



Appeal, No. 215, Apr. T., 1956, from judgment of Court of Quarter Sessions of Somerset County, Pennsylvania, Feb. T., 1943, No. 8, in case of Commonwealth of Pennsylvania v. Steve Smihal. Judgment reversed.

COUNSEL

Archibald M. Matthews, for appellant.

Frank A. Orban, Jr., District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).

Author: Ervin

[ 182 Pa. Super. Page 234]

OPINION BY ERVIN, J.

This is an appeal from the refusal of the Court of Quarter Sessions of Somerset 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 fornication and bastardy.

December 31, 1942, the prosecutrix made information under oath before a Justice of the Peace, charging the defendant with fornication and bastardy, alleging the offense took place "on or about the 21 day of February A. D. 1942 and on various other dates after the date above mentioned. ..." At the time of the making of the information the defendant was overseas in the U.S. Army, having been inducted into the service on April 29, 1942, and having gone overseas July 1, 1942. On January 8, 1943, the Justice of the Peace returned the information, stating thereon that the defendant was a fugitive from justice and that it was reliably reported

[ 182 Pa. Super. Page 235]

    that he was a member of the armed forces of the United States. This information was filed January 11, 1943 and on January 25, 1943, the grand jury returned a true bill. On August 15, 1945 the defendant was discharged from the service and returned to his home near Windber, Pennsylvania. He continued to reside at his home, engaged in his usual work and his usual pursuits from that time until March 22, 1956, when he was arrested on a process issued on praecipe filed by the district attorney on March 3, 1956. Defendant entered bond for his appearance at the next term of court. When the case was called for trial on May 24, 1956, the defendant entered a plea of not guilty, and after trial the jury found him guilty. After refusal to grant defendant's motions for new trial and arrest of judgment the court below entered an order directing defendant to pay the costs of prosecution, pay the reasonable lying-in and medical expenses, pay the sum of $10.00 per month for 14 years and provided for monthly payments of the accrued maintenance charge and authorized the defendant to enter his own bond of $2,000.00. This appeal followed.

The prosecutrix testified she met the defendant in November, 1941. She testified that she kept company with him from November, 1941 until he was inducted into the Army in April, 1942. She also testified that she had sexual relations with the defendant on various occasions during the period between November, 1941 and April, 1942, the last occasion being on April 25, 1942 just prior to his induction. The evidence also reveals that the prosecutrix and defendant corresponded after the defendant's entry into the service but the prosecutrix testified that she received no further letters from the defendant after she wrote to him and advised that she was pregnant. Defendant denied having sexual relations with the prosecutrix prior to his induction

[ 182 Pa. Super. Page 236]

    but admitted that he "picked her up maybe" and had written to her ...


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