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COMMONWEALTH v. LUDLOW (11/10/65)

decided: November 10, 1965.

COMMONWEALTH
v.
LUDLOW, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Bucks County, Sept. T., 1964, No. 82, in case of Commonwealth of Pennsylvania v. William Henry Ludlow.

COUNSEL

David H. Kubert, for appellant.

David Durben, Assistant District Attorney, with him William J. Carlin, District Attorney, for Commonwealth, appellee.

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

Author: Wright

[ 206 Pa. Super. Page 465]

On March 23, 1964, Arlene Barkman, a married woman, made an information charging William Henry Ludlow with neglect to support a child born out of lawful wedlock, as proscribed by Section 732 of The Penal Code. Act of June 24, 1939, P. L. 872, 18 P.S. 4732. After hearing, the justice of the peace held Ludlow under bail for court action. On July 6, 1964, on Ludlow's petition, a blood grouping test was ordered, the result of which did not exclude paternity.

[ 206 Pa. Super. Page 466]

Ludlow thereafter entered a plea of not guilty and waived jury trial. The case was heard non-jury by Honorable John P. Fullam, who made a finding "that the defendant is guilty as charged". Motions for new trial and in arrest of judgment were overruled, sentence was imposed, and this appeal ensued.

In the motion for a new trial, appellant's trial counsel advanced only the stock reasons, namely, that the verdict was contrary to the evidence, the weight of the evidence, and the law. Appellant's present counsel now contends that the Commonwealth was permitted to produce incompetent testimony. Although we perceive no merit in this argument, we will not discuss it since it was not advanced in or passed upon by the court below. Cf. Commonwealth v. Joyce, 202 Pa. Superior Ct. 350, 197 A.2d 226.

The motion in arrest of judgment was based on the contention that the Commonwealth's evidence was insufficient to sustain the verdict "more particularly, but not limited to, the issue of non-access". This question is properly before us, and is the sole issue for our determination. The relevant testimony is summarized in the opinion below as follows:

"The child in question was born on October 11, 1962. The testimony indicates that January 10, 1962 was the date of onset of the prosecutrix's last menstrual period before the birth of the child. It therefore appears that the most likely time of conception was late January or early February of 1962.

"The prosecutrix has been married twice, her first marriage terminated in divorce in 1960. On June 17, 1961, the prosecutrix married one Wilson Albert Barkman, and this marriage was not finally terminated until November 4, ...


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