Appeal, No. 294, April T., 1962, from judgment of Court of Quarter Sessions of Somerset County, Sept. T., 1960, No. 27, in case of Commonwealth of Pennsylvania v. James Harbaugh. Judgment reversed.
Archibald M. Matthews, for appellant.
Robert M. Keim, District Attorney, for Commonwealth, appellee.
Before Lansberry, P.j. Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
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James Harbaugh was convicted of fornication and bastardy. After sentence he appealed to this Court. We sustained the sentence for fornication but set aside the bastardy conviction and granted a new trial. (197 Pa. Superior Ct. 587, 179 A.2d 656). At the retrial the defendant was again convicted of bastardy, sentenced and has again appealed. We are unanimously of the opinion that the conviction must again be set aside and a new trial granted.
In granting a new trial in the first case, pp. 590, 591, we said: "... All these facts - the short period of gestation, the lack of blood tests, the overwhelming evidence of the prosecutrix's promiscuity, the inconsistent judgments of sentences, the inconsistent positions of the Commonwealth in obtaining convictions, - when taken together lead us to conclude that the interest of justice would best be served by granting a new trial on the bastardy charge..."
The indictment charges that the defendant had intercourse with the prosecutrix on June 16, 1960, as a result of which a child was born February 21, 1961. As the child was a normal, fully developed child born
[ 201 Pa. Super. Page 363]
only 250 days after the alleged intercourse,*fn1 it was argued that the defendant could not be the father of the child. Although such a short period of gestation is a fact for the consideration of the jury, it does not eliminate the defendant as a possible father. Commonwealth v. Watts, 179 Pa. Superior Ct. 398, 116 A.2d 844 (1955).
At the first trial the prosecutrix was limited in her testimony to the date alleged in the indictment, but at the second trial she was properly permitted to testify that the defendant had intercourse with her a number of times between May 23, 1960 and June 26, 1960. The time between the dates of the intercourses set by the prosecutrix and the date of the child's birth cannot be the basis for a new trial on the evidence now before us.
The prosecutrix has been promiscuous. The evidence established that she has three illegitimate children, each with a different father.*fn2 At the first trial three witnesses testified for the defendant that each had had intercourse with the prosecutrix on a date within ...