Appeal, No. 281, April T., 1961, from sentence of Court of Quarter Sessions of Somerset County, Sept. T., 1960, No. 27, in case of Commonwealth of Pennsylvania v. James Harbaugh. Sentence on charge of fornication affirmed; sentence on charge of bastardy reversed and new trial granted.
Archibald M. Matthews, for appellant.
Robert M. Keim, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 588]
James Harbaugh was convicted by a jury of fornication and bastardy. He was sentenced on both charges after motions in arrest of judgment and for a new trial had been denied by the court below. This appeal followed.
The defendant contends that the evidence produced by the Commonwealth was insufficient to sustain a conviction, and that the verdict was against the weight of the evidence. If there is evidence to sustain the verdict, the court may not arrest judgment, but it may grant a new trial if the verdict is against the weight of the evidence. Commonwealth v. Coyle, 190 Pa. Superior Ct. 509, 511, 154 A.2d 412 (1959).
The Commonwealth produced sufficient evidence in this case to sustain the convictions. The prosecutrix testified that the defendant had sexual relations with her on the 16th of June 1960, which resulted in her becoming pregnant and giving birth to a female child on February 21, 1961. There is no question that the sentence on the charge of fornication must be affirmed, but the bastardy conviction requires careful examination.
[ 197 Pa. Super. Page 589]
The defendant contends that because only 250 days elapsed between the date of his alleged intercourse with the prosecutrix and the date of the birth of the child, the jury could not find him guilty of bastardy. He argues that the jury could not accept 250 days as a possible period of gestation because the expert medical testimony presented at the trial indicated the period of time was not within the possible range. The medical evidence presented in this case was that the normal period of gestation is 280 days*fn1 with a variation of approximately 20 days before or after with a possibility of a slightly greater variation. The attending physician said he believed that the child was "a normal full time child" weighing 7 lbs. 6 ozs.
The appellant relies on Commonwealth v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A.2d 836 (1948), in which this Court held that the jury had to rely upon the medical testimony offered at the trial. In Commonwealth v. Young, 163 Pa. Superior Ct. 279, 60 A.2d 831 (1948), filed the same day, this Court did not depend upon the medical testimony of the case, but resorted to medical authorities outside of the record to determine the possible period of gestation. In Commonwealth v. Watts, 179 Pa. Superior Ct. 398, 116 A.2d 844 (1955), this Court held that it was not error for the trial judge to have charged the jury that a gestation period may vary from 220 to 330 days, even though there was no medical testimony in that case to support such ...