Commonwealth v. Wibner

Decision Date28 February 1920
Docket Number40-1920
Citation73 Pa.Super. 349
PartiesCommonwealth v. Wibner, Appellant
CourtPennsylvania Superior Court

Argued October 6, 1919

Appeal by defendant, from judgment of Q. S. Allegheny County, May Sessions, 1919, No. 15, on verdict of guilty in case of Commonwealth v. Albert J. Wibner.

Indictment under Act of July 11, 1917, P. L. 773, for failure to support illegitimate child. Before Haymaker, J.

The facts appear in the opinion of the Superior Court.

Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

Error assigned, among others, was the charge of the court, refusal to quash the indictment and to give binding instructions for the defendant.


James A. Wakefield, and with him Max J. Spann, for appellant cited: Commonwealth v. Bowers, 3 Brewst. 350; Commonwealth v. House, 223 Pa. 487; Swan v Commonwealth, 104 Pa. 218; Commonwealth v Shields, 50 Pa.Super. 1; Kane v. Commonwealth, 89 Pa. 522; Commonwealth v. Sayars, 21 Pa.Super. 75.

Homer N. Young, Assistant District Attorney, and with him Harry H. Rowand, District Attorney, for appellee.

Before Orlady, P. J., Porter, Henderson, Head and Keller, JJ.



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 born out 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 distinct and essential element of the crime and must therefore be strictly proven. We are sustained by ample authority in...

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8 cases
  • Riepe v. Riepe
    • United States
    • Arizona Court of Appeals
    • May 25, 2004
    ...(noting that "parent" means natural parent, "[o]ne who begets, or brings forth, offspring; a father or mother"); Commonwealth v. Wibner, 73 Pa.Super. 349 (1919) (citing Snyder v. Greendale Land Co., 48 Ind.App. 178, 91 N.E. 819 (1910)) (holding that a "parent" is a "father or mother," or "o......
  • State v. Sims
    • United States
    • Louisiana Supreme Court
    • January 14, 1952
    ...102 Neb. 575, 168 N.W. 135; State v. Spillman, 210 N.C. 271, 186 S.E. 322, 323 and Commonwealth v. Wibner, 29 Pa.Dist. 67, affirmed 73 Pa.Super. 349. ...
  • Commonwealth v. Bertram
    • United States
    • Pennsylvania Superior Court
    • December 18, 1940
    ...element and must be strictly proven, the jurisdictional requirements of a prosecution for fornication and bastardy do not apply. Com. v. Wibner, supra. majority of us are of the opinion that the phrase of the act "whether within or without this Commonwealth" refers to the residence and domi......
  • Com. v. Shavinsky
    • United States
    • Pennsylvania Superior Court
    • January 17, 1956
    ...was discussed, there nevertheless has been at least one case where this court affirmed an order which was retroactive. Commonwealth v. Wibner, 1920, 73 Pa.Super. 349, 1925, 85 Pa.Super. 270, and another in which it gave some indication that an order could require support from the date of th......
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