Riddle Appeal

Dissenting Opinion by

Hoffman, J.:

Although the majority properly concluded that the lower court erred in declaring a mistrial in the instant matter, I respectfully dissent from the majority’s find *77 ing that this improper declaration does not bar further litigation on the issue of appellee’s paternity of an illegitimate child. Further proceedings against the appellee are banned by the double jeopardy provisions of the United States and Commonwealth constitutions.

There is no substance for the majority finding that bastardy is not crime. Bastardy is a crime for which the legislature has imposed sanctions. Anyone charged with this offense must receive all the protections guaranteed to an accused by the United States and Commonwealth constitutions. Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 279 A. 2d 251 (1971); Commonwealth ex rel. Kolodsiejski v. Tancredi, 222 Pa. Superior Ct. 436 , 295 A. 2d 174 (1972).

Indeed, prior to the 1963 amendment to the Criminal Procedural Support Law, an order compelling a man to support his illegitimate child could not even be entered at a civil proceeding, but could only be entered pursuant to a conviction under the penal code. Commonwealth v. Dillworth, 431 Pa. 479, 484 , 246 A. 2d 859 (1968). The 1963 amendment, however, permits the father of an illegitimate child to avoid the stigma of conviction or the “stigma of pleading guilty to a criminal offense.” In instances where the father admits paternity but disputes the amount of the support order, the legislature empowered courts to enter an order of support for an illegitimate child in a civil proceeding. Commonwealth v. Dillworth, supra. Where paternity is disputed, and a jury trial demanded, bastardy remains a punishable offense. Neither the Civil Procedural Support Law, nor the 1963 amendment thereto imovides for the determination of paternity in a case where paternity is disputed and a jury trial demanded. Commonwealth v. Dillworth, supra, 431 Pa. at 486 .

In Commonwealth v. Jacobs, 220 Pa. Superior Ct. 31, 38 , 279 A. 2d 251 (1971), this court recognized the Pennsylvania legislature’s determination that bas *78 tardy was a crime which was joined with fornication for the purpose of prosecution. Thus, a man who denies paternity and demands a jury trial must receive all the protections guaranteed to an accused in a criminal proceeding. In addition, if such a man is convicted, he must carry the heavy burden of a criminal record and the community stigma which accompanies conviction.

The criminal nature of bastardy was most fully discussed by Judge Jacobs, in Commonwealth v. Shook, 211 Pa. Superior Ct. 413 , 236 A. 2d 559 (1967) : “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. Superior Ct. 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.

“In fact the statute recognizes that fornication and bastardy constitutes two offenses. . . 211 Pa. Superior Ct. at 417-418 .

*79 Commonwealth v. Pewatts, 200 Pa. Superior Ct. 22, 25 , 186 A. 2d 408, 410 (1962), defines bastardy as a crime in the same straight forward language as Shook: “Under section 506 of The Penal Code of 1939, . . . fornication is made a misdemeanor subject to a fine of one hundred dollars ($100.00); and when a child is born a separate crime known as 'fornication and bastardy’ or simply 'bastardy’ is committed. (Citations omitted.) An additional sentence is provided for that crime, viz., the payment of the expenses of the birth and maintenance of the child, and its burial should it have died.”

Neither is this viewpoint the product of a recent change in the law. In Commonwealth v. Rednock, 165 Pa. Superior Ct. 536, 537 , 69 A. 2d 447 (1949), this Court held “[FJornication and bastardy are two offenses, and on the trial of an indictment charging them a jury could acquit of the bastardy but convict of the fornication. . . . Commonwealth v. Young, 163 Pa. Superior Ct. 279 , 60 A. 2d 831 ; Commonwealth v. Jodlowsky, 163 Pa. Superior Ct. 284 , 60 A. 2d 836 .” This opinion echoes the viewpoint expressed in Commonwealth v. Losey, 79 Pa. Superior Ct. 75 (1922) and in Commonwealth v. Gamica, 85 Pa. Superior Ct. 396 (1925).

In light of such persuasive authority, this court must realize that the legislature made fathering an illegitimate child a crime. Conviction for this crime carries penalties as well as the stigma of a criminal record. The appellee cannot, therefore, be retried in a criminal proceeding without violating the double jeopardy provisions of the United States and Pennsylvania constitutions. Commonwealth v. Richbourg, 442 Pa. 147 , 275 A. 2d 345 (1971). Neither may appellee’s paternity be determined in a civil proceeding. Commonwealth v. Dillworth, supra, guarantees a criminal trial and all the protections accorded thereunder for *80 any man who denies paternity and demands a jury trial. While the legislature might have better protected the interests of illegitimate children by providing for the civil determination of paternity in all cases, the legislature chose not to do so. Thus, this court may not serve as a super-legislature and concoct procedures to protect the interests of illegitimate children especially where those procedures deny the accused his constitutional rights. The constitution and the legislature having spoken, the question of the appellee’s paternity can never be decided in Pennsylvania.

Accordingly, I would affirm the order of the lower court.