Opinion
April 8, 1929.
April 15, 1929.
Crimes — Fornication and bastardy — Contradictory statements — Confused witness — Case for jury.
In the trial of an indictment for fornication and bastardy it appeared that the prosecutrix was of low mentality, uneducated and had had little schooling. She was easily confused and under cross-examination made contradictory statements. Following a tactful examination by the court she was reassured and thereafter there was no uncertainty in her testimony. Under such circumstances the case was for the jury and a verdict of guilty will be sustained.
Appeal No. 157, April T., 1929, by defendant from judgment of Q.S., Allegheny County, April Sessions, 1928, No. 580, in the case of Commonwealth of Pennsylvania v. Joseph L. Severa.
Before TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Indictment for fornication and bastardy. Before ROWAND, J.
The opinion of the Superior Court states the case.
Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.
Errors assigned were to the refusal of defendant's motions for binding instructions and for a new trial.
Ralph P. Tannehill, for appellant, cited: Gordon v. The Director General of Railroads, 268 Pa. 497.
J.E. Kalson, Assistant District Attorney, and with him Samuel H. Gardner, District Attorney, and Ralph C. Davis, for appellee, cited: McCollum v. Pittsburgh Railway Co., 51 Pa. Super. 637; Miller v. Lehigh Valley. R.R. Co., 58 Pa. Super. 558; Commonwealth v. Sutton, 51 Pa. Super. 191; Corrigan v. Traction Co., 225 Pa. 560; Commonwealth v. Levine, 74 Pa. Super. 491.
Argued April 8, 1929.
Appellant was convicted of fornication and bastardy. He offered no evidence on the trial, taking the position that the testimony of the Commonwealth's witness, Mary Holewinski, with respect to the alleged act or acts of fornication, was so contradictory as to be insufficient and incompetent to sustain a verdict of guilty.
The girl was of low mentality, uneducated and had had little schooling. She was easily confused and under the cross-examination of defendant's counsel made answers, which if she understood the questions, were inconsistent with the defendant's guilt; but the sympathetic and tactful examination by the court which followed apparently reassured the witness and thereafter there was no uncertainty or contradiction in her testimony.
We agree with the learned court below that the case was for the jury.
The assignments of error are overruled. The judgment is affirmed, and it is ordered that the appellant, Joseph L. Severa, appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with the sentence, or any part of it, which had not been performed at the time the appeal in this case was made a supersedeas.