Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery in and for the Peace of Allegheny County, Dec. T., 1963, No. 96, in case of Commonwealth of Pennsylvania v. Stephen J. Dulacy.
J. I. Simon, for appellant.
Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.
[ 204 Pa. Super. Page 164]
The defendant, Stephen J. Dulacy, appeals from the judgment of sentence after conviction of charges of corruption of the morals of a minor and fornication. He was acquitted of the charge of statutory rape and was sentenced to six months in the Allegheny County workhouse on the "corruption" charge and a fine of one hundred dollars on the fornication charge. His
[ 204 Pa. Super. Page 165]
motions in arrest of judgment and for a new trial were denied.
The evidence shows that the defendant turned up at a party to which he was not invited, and at its close, took some of the participants home in his automobile. One of these was the minor involved, whom he didn't take home but kept with him all night. The evidence further discloses that the minor involved was left out of the defendant's car at 7:00 a.m., and the police found her at 10:00 a.m.; that he supplied her with beer, a case of which he had in the car, and she became drunk; and that he committed fornication with her. At the time the defendant was 19 years of age; the minor Karen Holmes, was fifteen.
The defendant argued below that the failure of the court to charge on the disposal of costs in the event of acquittal in the case of misdemeanor was fundamental error entitling him to a new trial. It is without merit but he has abandoned this contention. His argument below in arrest of judgment was the failure of the court to sustain a demurrer to the charge of "corrupting". This contention below was based on her consent and evident desire to commit the acts. The question of consent is neither relevant nor material on a charge of corrupting the morals of a minor under § 532 of The Penal Code, 18 PS § 4532. Com. v. Blauvelt, 186 Pa. Superior Ct. 66, 140 A.2d 463 (1958). The court below properly denied the defendant's demurrer.
This appeal raises questions before this Court that were not raised below. He now contends that the crime of "corrupting" was included in the more serious crime of statutory rape and the acquittal of that more serious crime works an acquittal of "corrupting". He also complains that the indictment was defective in that the only act alleged was carnal knowledge and that "other wrongs" was not sufficiently specific to support the conviction of "corrupting".
[ 204 Pa. Super. Page 166]
We do not believe these contentions have any merit. As to merger, see Com. ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). As to the indictment, he never moved to quash it nor seek a bill of particulars. He is, therefore, bound under the "corrupting" bill to meet the charge of "other wrongs", such as supplying and plying her with ...