Appeal, No. 72, April T., 1959, from judgment of County Court of Allegheny County, May T., 1957, No. 114, in case of Commonwealth of Pennsylvania v. Joseph Coyle. Judgment of sentence reversed and new trial granted.
Thomas H. Cauley, with him Cauley and Birsic, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 510]
This appeal involves the weight to be given to evidence of a blood grouping test which showed that the defendant in a bastardy case could not have been the father of the prosecutrix's child. The jury, apparently ignoring the evidence of the blood test, convicted the defendant, and the court below refused a new trial. After sentence was imposed upon the defendant, he appealed to this Court.
Prior to the Act of June 15, 1951, P.L. 585, 19 PS § 871, Pennsylvania courts granted new trials in cases where the Commonwealth's evidence was insufficient to sustain the conviction, and where the verdict was against the weight of all the evidence. Commonwealth v. Nathan, 93 Pa. Superior Ct. 193, 197 (1928). Since
[ 190 Pa. Super. Page 511]
the passage of this act the courts may arrest the judgment of sentence on the ground of the insufficiency of the evidence, but the sufficiency must be tested according to the Commonwealth's evidence. Commonwealth v. Wright, 383 Pa. 532, 536, 119 A.2d 492 (1956); Commonwealth v. Brown, 184 Pa. Superior Ct. 494, 498, 136 A.2d 138 (1957).
The court may not arrest judgment where there is evidence to sustain the conviction, but it may grant a new trial where the verdict is against the weight of the evidence. 11 P.L.E. Criminal Law, § 609; Commonwealth v. Jenkins, 185 Pa. Superior Ct. 577, 138 A.2d 203 (1958); Hess v. Stiner, 144 Pa. Superior Ct. 249, 250, 19 A.2d 560 (1941); Commonwealth v. Jones, 303 Pa. 551, 154 A. 480 (1931); Commonwealth v. Smith, 3 Pa.D. & C.2d 228 (1955).
In the case now before us, Dr. William Kuhns, a noted pathologist of Pittsburgh testified that he made two separate tests of the blood of the mother, the child and the defendant, that the defendant was in blood group "O", the mother was in blood group "A", and the child was in blood group "B", and that this excluded the defendant as a possible father of the child. It is acknowledged by medical and legal authorities alike that under these blood groupings it would be biologically impossible for the defendant to be the father of the child. See I Wigmore on Evidence, 3rd Edition, page 619, table 4, line 2, § 165b.
The integrity and professional ability of the medical witness was not questioned, nor is there anything in the evidence to indicate any possibility of error in the laboratory testing.
The courts, which are responsible for administering justice, should not permit a jury to capriciously disregard indisputable evidence, and to convict a defendant when ...