Com. v. Shook

Decision Date14 December 1967
Citation211 Pa.Super. 413,236 A.2d 559
PartiesCOMMONWEALTH of Pennsylvania v. Charles SHOOK.
CourtPennsylvania Superior Court

Joseph J. Nelson, Asst. Dist. Atty., Mercer, for appellant.

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

Before ERVIN, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.

JACOBS, Judge.

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. § 4506, when the child was born outside Pennsylvania to a nonresident prosecutrix. The lower court held that he could not. We affirm.

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 indicated and 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 such child, and if such child is born dead, or shall die during the continuance of the order for the maintenance of said child, to also pay the reasonable funeral expenses thereof, and to give security, by one or more sureties, and in such sum as the court shall direct, to the institution district where such child was born, to perform such order for the maintenance of the said child, as the court shall direct.

'After a hearing on the petition of any interested party, such order for the maintenance of such child may be increased or decreased from time to time by said court before or after the expiration of the term at which such man was sentenced.

'If a bastard child is begotten out of the State, and born within the State, or begotten within one of the counties of this State and born in another, in the latter case the prosecution of the reputed father may be in the county where the bastard child was born or begotten, and like sentence shall be passed as if the child had been born and begotten in that county; and in the former case like sentence shall be passed, except the fine for fornication.'

Although it has been said that bastardy proceedings are in certain respects more civil than criminal in nature 1 here a criminal proceeding to determine paternity has been brought under Section 506 of The Penal Code. For certain purposes we have recognized that fornication and bastardy are two offenses, Commonwealth v. Rednock, 165 Pa.Super. 536, 69 A.2d 447 (1949). Normally a crime can be punished only within the state where it is committed. Commonwealth v. Kunzmann, 41 Pa. 429 (1862). Since the defendant's child was born in Illinois, at least superficially Illinois would seem to have jurisdiction of the bastardy offense. Whether or not Pennsylvania courts have jurisdiction in this case depends upon a construction of Section 506.

Section 1104 of The Penal Code, 18 P.S. § 5104, provides that: 'In all cases where a remedy is provided or duty enjoined, or any thing directed to be done by the penal provisions of any act of assembly, the direction of said act shall be strictly pursued; and no penalty shall be inflicted or anything done agreeably to the provisions of the common court in such cases, further than shall be necessary for carrying such act into effect.' Section 58 of the Statutory Construction Act of May 28, 1937, P.L. 1019, 46 P.S. § 558, calls for the strict construction of the penal provisions of a law.

The penal nature of Section 506 of The Penal Code in regard to bastardy is apparent from its wording. It provides that anyone who commits fornication is guilty of a misdemeanor and upon conviction shall be sentenced to pay a fine and if found to be the father of the prosecutrix's bastard child 'shall be sentenced in addition to the fine aforesaid, to pay the expenses incurred at the birth of such child, * * * and to give security, * * * to perform such order for the maintenance of the said child, as the court shall direct.'

Clearly the legislature in the use of the word 'sentence' contemplated a judgment in a criminal proceeding, not an order in a civil matter. The order for maintenance is the legal consequence of being found guilty of fornication resulting in bastardy and is, under this statute, made a criminal penalty. In Commonwealth v. Pewatts, 200 Pa.Super. 22, 186 A.2d 408 (1962) we recognized that Section 506 is punitive.

We conclude that Section 506 of The Penal Code is penal in nature and as such must be strictly construed. Commonwealth v. Derstine, 418 Pa. 186, 210 A.2d 266 (1965); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959).

A consideration of Section 506 convinces us that it was not intended to cover the prosecution of the father of a child born outside the Commonwealth. It refers to security to be given, in pursuance of court order, to the institution district Where the child was born. This language clearly contemplates that the birth occurred in Pennsylvania. The last paragraph enumerates the venue of...

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3 cases
  • Correll v. COM. DEPT. OF TRANSP.
    • United States
    • Pennsylvania Commonwealth Court
    • February 18, 1999
    ...clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). 5. Commonwealth v. Shook, 211 Pa.Super. 413, 236 A.2d 559, 561 (1967) (emphasis added). 6. Correll does not further articulate her procedural due process claim. It is beyond question ......
  • Com. ex rel. Riddle v. Anderson
    • United States
    • Pennsylvania Superior Court
    • April 3, 1974
    ...under § 506, the statute indicates that the two offenses are separate. This Court has recognized the distinction. Commonwealth v. Shook, 211 Pa.Super. 413, 236 A.2d 559 (1967). Fornication is a misdemeanor punishable by a fine, and has been consistently treated as a criminal act. See, e.g.,......
  • Lasher v. Redevelopment Authority of Allegheny County
    • United States
    • Pennsylvania Superior Court
    • December 14, 1967

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