decided: September 15, 1967.
Appeal from order of Court of Quarter Sessions of Northampton County, April T., 1966, No. 168, in case of Commonwealth of Pennsylvania v. David Frey.
Elwood M. Malos, First Assistant District Attorney, with him Philip S. Ruggiero, Assistant District Attorney, and Bernard V. O'Hare, Jr., District Attorney, for Commonwealth, appellant.
Charles H. Spaziani, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
[ 210 Pa. Super. Page 481]
The appellee-defendant David Frey was charged with the crime of fornication with a female, Sharon Pysher, and bastardy because of a female child born of her. The matter was tried before Honorable Robert W. Trembath and a jury. At the conclusion of the
[ 210 Pa. Super. Page 482]
case of the Commonwealth Judge Trembath sustained defendant's demurrer to the evidence on the charge of bastardy and accepted a plea of guilty to the charge of fornication. The Commonwealth appealed.
The child was born April 4, 1966. Its mother and the defendant had engaged in acts of intercourse regularly from the second week of June, 1965 to September of that year. She became pregnant around June 20, 1965. The demurrer was sustained because of evidence that Miss Pysher had had relations with another man in March of 1965, but there is nothing to indicate that she had relations with anyone after that month except the defendant. This would place the date of her last relations with that other man more than a year before the birth of her child, which would not justify the sustaining of a demurrer in this case. Commonwealth v. Harbaugh, 197 Pa. Superior Ct. 587, 179 A.2d 656 (1962); Commonwealth v. Jodlowsky, 163 Pa. Superior Ct. 284, 60 A.2d 836 (1948). This was recognized by the trial judge who stated in his opinion subsequently filed, "This court mistakenly granted this defendant's demurrer and discharged the jury, but was without power to correct its own mistake without unduly complicating the future disposition of the matter."
The order sustaining the demurrer is reversed and a new trial awarded on the charge of bastardy.
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