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COMMONWEALTH v. DUNNICK (07/24/64)

decided: July 24, 1964.

COMMONWEALTH, APPELLANT,
v.
DUNNICK



Appeal from order of Court of Quarter Sessions of York County, Oct. T., 1963, No. 22, in case of Commonwealth of Pennsylvania v. Dana Dunnick, Jr.

COUNSEL

J. Edward Pawlick, for Commonwealth, appellant.

Richard H. Horn, with him William F. Hoffmeyer, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Woodside, J.

Author: Woodside

[ 204 Pa. Super. Page 60]

This is an appeal from an order of the Court of Quarter Sessions of York County quashing an indictment.

An information was filed August 7, 1959, before an alderman charging the defendant with fornication and bastardy on December 19 and 20, 1958, in violation of § 506 of The Penal Code of June 24, 1939, P. L. 872, 18 P.S. § 4506. A warrant was issued the same day, but the constable could not find the defendant. He was not arrested until September 17, 1962. The child had been born on schedule September 19, 1959. The event was noted on the alderman's transcript.

The defendant moved to quash the information on the ground it was barred by the statute of limitations. The court refused to quash the information saying in its opinion: "We are satisfied that any prosecution or indictment for fornication and bastardy has been barred by the statute of limitations . . . However, the Commonwealth suggests . . . that the information may be sufficient to support an indictment for failure to support a child born out of lawful wedlock. Such a charge would not be barred by the statute of limitations because The Penal Code permits prosecutions to be brought within two years from the birth of the child. Act of June 24, 1939, P. L. 872, § 732, 18 P.S. § 4732. This has been construed to mean a period of two years

[ 204 Pa. Super. Page 61]

    from the birth to the date the information is filed, and not to the date of indictment. Commonwealth v. O'Gorman, 146 Pa. Superior Ct. 553 (1941); Commonwealth v. Teeter, 163 Pa. Superior Ct. 211 (1948); Commonwealth v. Shimpeno, 160 Pa. Superior Ct. 104 (1946)." Commonwealth v. Dunnick, 77 York 83, 85 (1963).

The defendant was thereupon indicted on the latter charge. Upon motion of the defendant, the court, after argument, quashed the indictment on the ground that the information charging fornication and bastardy brought under § 506, supra, cannot support an indictment charging failure to support a child born out of lawful wedlock brought under § 732, supra.

The court below decided "that the indictment is fatally defective because it charges an offense different from that alleged in the information." The crime charged in an indictment need not be the identical crime charged in the information. The indictment is valid if it charges the commission of any crimes which are cognate to the one laid in the information. Commonwealth v. Ruff, 92 Pa. Superior Ct. 530, 536 (1928); Maginnis's Case, 269 Pa. 186, 195, 112 A. 555 (1921); Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A.2d 210 (1950); Commonwealth v. Danner, 79 Pa. Superior Ct. 556, 558 (1922).

The offense of fornication and bastardy and the offense of failure to support a child born out of lawful wedlock are separate offenses. Commonwealth v. Morningstar, 82 Pa. Superior Ct. 425, 427 (1923); Commonwealth v. Bertram, 143 Pa. Superior Ct. 1, 3, 16 A.2d 758 (1940); Commonwealth v. Foust, 194 Pa. Superior Ct. 253, 166 A.2d 109 (1960). A conviction of fornication and bastardy is not a bar to a prosecution for failure to support the child. Commonwealth v. ...


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