Commonwealth v. Wibner , 73 Pa. Super. 349 ( 1920 )

Opinion by

Orlady, P. J.,

The defendant was convicted of violation of the Act of July 11, 1917, P. L. 773, which provides that any parent who shall wilfully neglect or refuse to contribute reasonably to the support and maintenance of a child born out of wedlock, shall be guilty of misdemeanor. All the defenses raised on the trial below are fairly embraced in the question involved as submitted by the appellant. First: In an indictment charging the defendant with wilful neglect and failure to contribute reasonably to the support of a child born out of lawful wedlock, is it competent for the trial judge to submit for the consideration of the jury, the question of the defendant’s having •had intercourse with the prosecutrix and as a result of such intercourse a child was begotten and born, in the absence of any provision in the act relating to or defining parent or proof of parentage. Second: A crime having been committed in September, 1916, is not an act passed in July, 1917, increasing the punishment of this crime, ex post facto law and therefore unconstitutional?

It is apparent that this statutory offense is new to our criminal law, but it is clearly defined in the words of the act as above quoted. To establish the defendant’s guilt it was necessary to prove his parentage of the child, and his wilful neglect or refusal to contribute reasonably to the support of such child which was bomout of lawful wedlock. The controlling facts as determined on the trial are as follows: The relation between the defendant and the prosecutrix was clearly established and resulted in the birth of a child May 27, 1917. He volunteered to provide for her support and that of the child from May, 1917,. to February 1, 1919, by paying her -rent at the rate of $25 per month, and $10 per week for the support of the child. No prosecution was instituted against him for fornication and bastardy on account of the agreement between the parties. The defendant refused to make further payment after February 1, 1919, when this prosecution was instituted under the act of assembly mentioned, and his conviction under this statute is entirely independent of any right to proceed under other statutes. In this case parentage is a idistinct and essential element of the crime and must therefore be strictly proven. We are sustained by ample authority in holding, that the putative or natural father is comprehended within the word parent: Macklin v. Taylor, 1 Addison 212. In Sibley v. Perry, 7th Vesey Jrs. p. 522, Lord Eldon, in construing a provision in a will in which it was necessary to interpret the words, children, issue and parent, held, “It is fair to put the ordinary sense upon the word parent; namely, father or mother”: Snyder v. Land Co., 91 N. E. Rept. 819. Webster defines the word parent, as, “one who begets or brings forth offspring; a father or a mother.”

In this case, the defendant was not charged with two offenses, but the one specially mentioned in the act quoted. The identity of the child was clearly established. The use of an abbreviated baby name for the one named in the indictment was not material, and even if so was a subject of amendment, and for the purpose of the case may be treated as having been made and allowed. It is conceded, that when a man is being tried for one crime, proof of the commission by him of another in no way connected with the crime charged cannot be permitted, but-the crime for which this defendant was convicted, was the wilful refusal to support his child, and the fact that the prosecutrix was deluded into believing that he would continue to care for her and his child, until the statute of limitation raised a bar to a prosecution for fornication and bastardy, will not and should not, in law or good morals avail him now. While he has secured immunity from prosecution under one section of our code, he is clearly liable under the Act of 1917, for the offense charged in this indictment, which did not occur until February 1, 1919, when he refused to further support his child.

The enactment of this statute has been deemed necessary for the protection of the public and in aid of the mother, as well as of a child born out of lawful wedlock, where the putative father concedes the paternity of his child and furnishes reasonable support until the statute of limitation becomes an effective bar to a prosecution for fornication and bastardy, and then claims immunity from further liability. The facts in this case demonstrate the necessity for and the wisdom of such legislation.

The assignments of error are not sustained, and the judgment is affirmed. The record is remitted, and it is ordered that the appellant appear at such time as he may be called and that he be by that court committed until he has complied with the sentence imposed or any part of it that had not been performed at the time this appeal became a supersedeas.