Commonwealth v. Bertram

• Decision Date: 18 December 1940
• Docket Number: 257-1940
• Citation: 16 A.2d 758,143 Pa.Super. 1
• Parties: Commonwealth, Appellant, v. Bertram
• Court: Pennsylvania Superior Court

16 A.2d 758

143 Pa.Super. 1

Commonwealth, Appellant, v. Bertram

No. 257-1940

Superior Court of Pennsylvania

December 18, 1940

Argued November 19, 1940.

Appeal from order of Q. S. Bucks Co., May Sessions, 1940, No. 71, in case of Commonwealth v. Frederick deM. Bertram.

Indictment for failure to support illegitimate children.

The facts are stated in the opinion of the Superior Court.

Motion by defendant to quash indictment sustained, opinion by Boyer J. Commonwealth appealed.

Error assigned was quashing of indictment.

Order reversed.

Philip Werner Amram, with him Edward G. Biester, District Attorney and Willard S. Curtin, Assistant District Attorney, for appellant.

John Leslie Kilcoyne, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Hirt, J.

The indictment charged that defendant "being the putative father of Frances Patricia Bertram and Virginia Diane Bertram, children begotten and born out of lawful wedlock in the City of Washington and District of Columbia, the said children having been born February 9, 1939, and being now residents of the said City of Washington and District of Columbia, did unlawfully, wilfully and maliciously neglect and refuse to contribute reasonably to the support of the said Frances Patricia Bertram and Virginia Diane Bertram, contrary to the form of the Act of the General Assembly ^[1] in such case made and provided, ...." This appeal by the Commonwealth followed an order quashing the indictment. A construction of the statute as applied to non-resident children is the question of law involved.

A consideration of the purpose of this legislation will throw some light on the intent and the meaning of its language. We are not in accord with defendant's contention that this section of the Criminal Code must be construed as a supplement to the fornication and bastardy acts and that its real purpose is to make fornication and bastardy a misdemeanor punishable by fine or imprisonment. The misdemeanor created by the act is wilful neglect or refusal to support bastard children, a separate and distinct offense, and not fornication and bastardy. Com. v. Wibner, 73 Pa.Super. 349. The act, in accordance with the modern trend, was designed to ameliorate the injustice of the common law in relation to the status and rights of illegitimate children, and to convert the moral duty of the father into a legal obligation to provide for their support and maintenance. In the earlier support statutes and the decisions construing them emphasis was placed upon the protection of poor districts and the public funds as the primary purpose, with aid to a wife or children as secondary and incidental. The act in question is obviously broader in its scope and the emphasis is reversed with the welfare of the children and enforcing the obligation of the father to support them as the first if not the only considerations.

To enforce a support order against an unwilling parent is difficult at best, and as we view the act, punishment was provided for the misdemeanor in aid of its main purpose so that a defendant, with the alternative of suffering the penalty of fine or imprisonment, would find it to his advantage to support his children. In § 731 of the same Code, a re-enactment of prior legislation, we find a like statute similar in purpose, making it a misdemeanor for a husband wilfully to neglect to support his wife or legitimate children, with the same provisions for an order of support and suspending of sentence during compliance. The maximum penalties for that misdemeanor are the same as those of § 732, negativing the inference that any sentence imposed under § 732 is to be regarded as punishment for fornication and bastardy and not for the failure to support. Though in this case parentage is a distinct and essential element and must be strictly proven, the jurisdictional requirements of a prosecution for fornication and bastardy do not apply. Com. v. Wibner, supra.

A majority of us are of the opinion that the phrase of the act "whether within or without this Commonwealth" refers to the residence and domicile of the child and does not limit the application of the act to children actually domiciled in this state. A penal statute directed against one residing within the jurisdiction of the court for the failure within this state to provide for the support of a child begotten, born and residing in another state is a proper exercise of legislative authority under the police power; the domicile and residence of the father of a minor bastard child gives legislative jurisdiction to put upon him the onus of supporting his child wherever residing. The jurisdiction of the court of quarter sessions "is fixed by the common law and the statutes declaring its powers. It is clearly within the power of the legislature to enlarge or restrict that jurisdiction" within constitutional limits. Com. v. Andrews, 24 Pa.Super. 571. The indictment charges a completed offense committed wholly in this state and the court has jurisdiction of it unaffected by the fact that these children take the domicile of their mother and reside beyond the state.

Statutes of this kind, where the unqualified purpose is to compel support, are generally construed in aid of non-resident children by necessary implication. "A statute of the state of domicil of the father of a minor bastard child will be there applied to compel him to contribute to the support of the child, irrespective of where the mother is domiciled unless the statute provides otherwise": Restatement Conflict of Laws § 455. The comment following the statement of this...