Commonwealth v. Allen ( 1890 )

Opinion,

Mr. Chief Justice Paxson :

This case discloses an amount of social and moral degradation that is not pleasant to contemplate. Its discussion will be confined within the narrowest possible bounds.

The motion to change the venue was in the sound discretion of the court below. The application was made upon the ground that a fair trial of the defendant could not be had in Potter county. The act of March 18, 1875, P. L. 30, provides that in criminal prosecutions the venue may be changed, for the causes enumerated in the act, when it “is made to appear to the satisfaction of the court” that the grounds upon which such application is made are well founded. In this casé, we are bound to presume that it did not appear to the satisfaction of the court that the defendant could not have a fair trial in Potter county. For anything the record discloses, the discretion of the learned judge was properly exercised. In any event, there was no such abuse of discretion as would justify our interference. It would seriously disturb the administration of the criminal law if, by merely filing an affidavit, a defendant could have a change of venue as a matter of right.

It was alleged that there could be no conviction because . there was no evidence that the child, Myra Lebar, upon whom • the rape had been committed, was of good repute. There was no need for the commonwealth to prove her to be of good repute until her character had been attacked. The law presumes •it to be good. If it was not, that was a matter of defence. We think this is the proper construction of the act of May 19, 1887, P. L. 128, the proviso of which is as follows: “That, upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen years, if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall be acquitted of the felonious rape, and convicted of fornication only.” A man who seeks to escape conviction for an offence of this nature, upon the ground that the female child he has abused is not of good repute, must show it; the law will not help him out with presumptions.

We are not prepared to say that it was error to admit the evidence of .Dr. Buck, referred to in the eighth assignment. It is true the medical examination was made at a very late day, and, to the extent of the delay, the force of the evidence was very much weakened. The learned judge very properly called the attention of the jury to this circumstance, in his charge.

Nor do we think there was error in the exclusion of the testimony referred to in the eleventh assignment. At the time the defendant took the child to Dr. Meine for the purpose of having a medical examination, she was under his control, living in his house. In taking her alone to a physican of his own selection, he may have been attempting to manufacture testimony for himself. The offer was also vague. It was not stated who had interposed the objection to the medical examination. The offer amounts to nothing more than that the doctor had refused to make an examination.

There is nothing in the remaining assignments which we think requires notice. The subject, as before observed, is unsavory ; and we gladly end the discussion.

The judgment is affirmed, and it is ordered that the defendant surrender himself forthwith to the custody of the sheriff of Potter county, under and in obedience to the sentence of the court below.