COMMONWEALTH vs. RICHARD N. CHASE.

GRANT, J. The Commonwealth has appealed (G. L. c. 278, Section 28E, as appearing in St. 1979, c. 344, Section 45; Mass. R.Crim.P. 13[c] and 15[a][1], 378 Mass. 872 , 882 [1979]) from an order entered by a judge sitting in the jury of six session of the Boston Municipal Court Department which allowed the defendant's pretrial motion to dismiss a complaint charging him with a violation of G. L. c. 273, Section 15, as amended through St. 1977, c. 848, Section 6. [Note 1] See Commonwealth

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v. Fanciullo, ante 64 (1980), further appellate review denied, 383 Mass. 890 (1981). The stated ground of the motion (with some interpolation) was that the prosecution of the complaint in the absence of a prior adjudication of the defendant's paternity of the child in question could result in depriving the defendant of his rights under unidentified portions of the United States Constitution and the Massachusetts Declaration of Rights. We proceed to a consideration of Section 15 and the other sections of G. L. c. 273 which are relevant to the present case.

The first sentence of Section 15 fastens criminal liability on "any parent [Note 2] of an illegitimate child . . . who neglects or refuses to contribute reasonably to its support and maintenance" (emphasis supplied). Parenthood is an essential element of the offence set out in the statute (Commonwealth v. Fanciullo, supra at 65) and is a fact which the Commonwealth must allege (as it has done here) and prove beyond a reasonable doubt (Commonwealth v. MacKenzie, 368 Mass. 613, 619 n.5 [1975]; Davis v. Misiano, 373 Mass. 261, 264 [1977]) in order to secure a conviction.

The second sentence of Section 15 is directed to the determination of parenthood when the defendant is a male. [Note 3] It reads: "If there has been a final adjudication of the paternity of the child, [Note 4] such adjudication shall be conclusive on all persons

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in proceedings under this section; otherwise, the question of paternity shall be determined in proceedings hereunder." [Note 5] The quoted language is explicit that a prior adjudication of paternity is not a prerequisite to the maintenance of the prosecution of a male under Section 15. Of equal importance, the quoted language serves to reinforce the proposition that parenthood (here paternity) of the child in question is an essential element of the offence set out in the first sentence of Section 15.

General Laws c. 273, Section 16, as also appearing in St. 1977, c. 848, Section 6, provides, in the part here material, that "after conviction, in proceedings under [Section 15], the alleged father shall be subject upon the original complaint or indictment in such proceedings to penalties and orders for payments similar to those provided by the first ten sections of this chapter; and the practice established thereby shall, so far as applicable, apply to any proceedings under [Section 15]." See Commonwealth v. Fanciullo, supra at 68-69. The first paragraph of Section 5 (as appearing in St. 1978, c. 552, Section 43) of G. L. c. 273 provides in relevant part that "after conviction, if the defendant is placed on probation, with or without suspension of the execution of a sentence, the court, having regard to the circumstances and to the financial ability or earning capacity of the defendant, may make an order, which shall be subject to change from time to time as circumstances may require, directing the defendant to pay certain sums periodically, for a term not exceeding six years, to the probation officer, and may release the defendant from custody on probation." The probation officer is to remit the defendant's payments to the caretaker of the child, to the person supporting the child, or to the

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State Treasurer for the use of the Department of Social Services, as the court may direct. [Note 6]

It is clear from the provisions of Section 16 that there is no power to order payments under Section 5 unless or until a defendant has been convicted under Section 15. It is also clear from the use in Section 5 of the words "certain sums periodically" that there is no power to order reimbursement for the expense of supporting an illegitimate child during any period which precedes a conviction under Section 15. [Note 7]

We find it unnecessary to rehearse all the constitutional and other arguments now advanced by the defendant or to recite all the fears expressed by the judge who allowed the motion to dismiss. It is enough to say that all the arguments founder and all the fears should be dissipated as soon as it is understood: that no prosecution can be maintained under Section 15 in the absence of evidence that the defendant knew or should have known of a claim that he or she is a parent of the child in question (see Commonwealth v. Fanciullo, supra at 65-68); that no conviction can be obtained under Section 15 except upon proof beyond a reasonable doubt that the defendant is a parent; that no financial liability can be imposed on the father of a child until he has been convicted; that the financial obligation which can be imposed on a father under Sections 15, 16 and 5 is prospective only; and that there is nothing in the statutory scheme that smacks of an ex post facto law (Commonwealth v. Callaghan, 223 Mass. 150, 151, cert. denied, 241 U.S. 667 [1916]).

The order allowing the motion to dismiss in this case was entered prior to our decision in the Fanciullo case. We would have thought the correct result now so clear as to warrant summary reversal under our rule 1:28, as most recently amended, 10 Mass. App. Ct. 942 (1980), by a simple

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order which referred to the Fanciullo case were it not for other cases pending on our docket in which judges have expressed doubts or displayed confusion as to the validity or proper interpretation of Section 15 and its relatives.

Order dismissing complaint reversed.