Commonwealth v. Gamica

Opinion by Linn, J., Appellant,. a married man, was charged in separate counts with adultery and bastardy, and with fornication and bastardy, and was convicted as indicted. Both the begetting and the birth of the child were alleged to have taken place in Allegheny County, but the evidence showed that the former occurred in Westmoreland County; appellant was sentenced to pay a fine and to . serve a year’s imprisonment. The penalty for adultery is prescribed by section 36 of the Act of March 31, 1860, P. L. 392; and the Commonwealth contends that the sentence of imprisonment complained of was imposed pursuant to that section. Section 37 prescribes the penalties for fornication and bastardy. Section 38, which governs this case, provides: “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 shall be in the county where the bastard child shall be born, and the like sentence shall be passed as if the bastard child had been or shall have been begotten within the same county, and in the former case, viz: of a bastard begotten without the state and born within it, the like sentence'shall be passed, except in the imposition of a fine, which part of the sentence shall be omitted.” See Com. v. Losey, 79 Pa. Superior Ct. 75, for discussion of that statute with reference to the precedents. Section 38 prescribes a penalty for bastardy and must be strictly construed; it applies here. The court below therefore had authority to sentence on the conviction of bastardy but not for the adultery said to have been committed in Westmoreland County. The judgment is reversed and the record is remitted with instructions to sentence appellant on the bastardy charge of which he was convicted.