
    Commonwealth v. Schortel.
    
      Criminal law — Fornication and bastardy — Petition for discharge from prison — Notice of petition — Insolvency Act — Acts of May 6,1887, Jane U, 1901, and May 6, 1915.
    
    1. Under the Acts of May 6, 1887, P. L. 86, and May 6, 1915, P. L. 266, the petition for discharge from prison by one who has been convicted of fornication and bastardy will not be granted unless a ten days’ notice of the presentation of such petition has been given to the mother or other person having custody of the bastard child.
    2. A person who has been convicted of fornication and bastardy and committed to jail in default of security, may also be discharged from custody at the expiration of three months by a proceeding under the Insolvency Act of June 4, 1901, P. L. 404.
    Petition to discharge from prison. Q. S. Schuylkill Co., Nov. T., 1926, No. 1061.
    
      C. W. Palmer, District Attorney, for Commonwealth.
    
      V. J. Dalton, for defendant.
    Feb. 21, 1927.
   Berger, J.,

Joseph W. Schortel, on Nov. 8, 1926, was sentenced, on a plea of guilty to a charge of fornication and bastardy, to pay a fine of $1 and to pay to the mother of the bastard child the sum of $2.60 weekly for its maintenance until the age of fourteen, and to enter security in the sum of $500 for a faithful compliance with the order of court. The defendant was committed for a failure to comply with this order, and on Feb. 7th presented his petition, under the Act of- May 6, 1887, P. L. 86, entitled “An act to authorize the commissioners of the several counties of this Commonwealth to discharge from prison all persons confined in jail, without proceedings under the insolvent laws,” praying for an order authorizing the county commissioners to discharge him from prison without the delay and expense of any proceeding under the insolvent laws of the Commonwealth. Originally, the Act of 1887 did not apply to persons committed to jail for a failure to comply with an order of the Court of Quarter Sessions, upon conviction of fornication and bastardy, but the amendatory Act of May 6, 1915, P. L. 266, extends its provisions to that class of persons.

The Act of 1887, as amended, provides, inter alia, that “the county commissioners, upon the order of the Court of Quarter Sessions, or, in vacation, of a law judge thereof, in the exercise of its or his discretion, and upon such terms as the court or judge may impose, may discharge from prison, without the delay and expense of any proceedings under the insolvent laws of this Commonwealth . . . any person who shall have failed to comply with the order of the Court of Quarter Sessions upon conviction of fornication or bastardy, or for fornication and bastardy, and been confined for a period of more than three months, notwithstanding . . . he . . . shall not have paid the costs of prosecution, fine, ... or (has) failed to comply with the court’s order upon conviction of fornication or bastardy, or fornication and bastardy.” In the exercise of the power to make an order of discharge, conditioned upon such terms as may be imposed by the court or trial judge, we will, in all cases arising under this act, as a preliminary to making an order of discharge in fornication and bastardy, require ten days’ notice of the presentation, or intended presentation, of the petition to the court or trial judge — of which satisfactory proof of service is to be made — to be given to the mother of the bastard child, if it is in her custody, and if not in her custody, to the person in whose custody it may be at the time of the presentation of the petition, before an order of discharge will be made.

There is also another method by which one convicted of fornication and bastardy and committed to jail in default of security may be discharged from custody at the expiration of three months. This is a proceeding under the Insolvency Act of June 4, 1901, P. L. 404, as interpreted in In re Insolvency of Hogan, 83 Pa. Superior Ct. 221.

For the reasons herein stated, the petition is, therefore, dismissed, without prejudice. From M. M. Burke, Shenandoah. Fa.  