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COMMONWEALTH v. SHOOK (12/14/67)

decided: December 14, 1967.

COMMONWEALTH, APPELLANT,
v.
SHOOK



Appeal from order of Court of Quarter Sessions of Mercer County, Dec. T., 1965, No. 34, in case of Commonwealth of Pennsylvania v. Charles Shook.

COUNSEL

Joseph J. Nelson, Assistant District Attorney, with him Edward M. Bell, District Attorney, for Commonwealth, appellant.

Henry M. Ekker, with him Cusick, Madden, Joyce, Acker & McKay, for appellee.

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

Author: Jacobs

[ 211 Pa. Super. Page 414]

The sole issue in this case is whether a defendant who resides in Pennsylvania can be tried for bastardy under Section 506 of The Penal Code, Act of June 24, 1939, P. L. 872, as amended, 18 P.S. ยง 4506, when the child was born outside Pennsylvania to a nonresident prosecutrix. The lower court held that he could not. We affirm.

[ 211 Pa. Super. Page 415]

The prosecutrix in this case being an unmarried woman, on September 29, 1965 filed an information before a justice of the peace in Mercer County charging the appellee with fornication and being the father of her unborn child. At that time and at the time of the alleged fornication prosecutrix resided in Pennsylvania. In November, 1965 she moved to Chicago, Illinois, and the child was born there on January 18, 1966. Shortly thereafter the grand jury of Mercer County indicted the appellee on a charge of fornication and bastardy under Section 506 of The Penal Code. After a jury trial at which the appellee was convicted on both charges the court below granted arrest of judgment of the bastardy conviction on the ground that Pennsylvania lacked jurisdiction because the child was born in another state. The Commonwealth appeals.

The Commonwealth has seen fit to bring this action in the form of a prosecution under Section 506 of The Penal Code. Section 506 provides in its entirety as follows:

"Whoever commits fornication, is guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), for the use of the institution district where the offense was committed.

"It shall be sufficient to convict an unmarried woman to show that a child was born of her body.

"Any man charged by an unmarried woman with being the father of her bastard child, shall be the reputed father and if she persists in the charge in the time of her extremity of labor, or afterwards in open court, the same shall be given in evidence in order to convict such person of fornication. Such man, being thereof convicted, shall be sentenced, in addition to the fine aforesaid, to pay the expenses incurred at the birth of ...


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