Commonwealth v. Kester , 1914 Pa. Super. LEXIS 339 ( 1914 )

Opinion by

Rice, P. J.,

The first six assignments of error raise the question as to the admissibility of evidence of specific acts tending to show the bad character of the prosecutrix. The determination of that question depends on the construction of the words “not of good repute” in the proviso of sec. 1 of the Act of May 19, 1887, P. L. 128. This subject received full and deliberate consideration in Com. v. Howe, 35 Pa. Superior Ct. 554, and we need not go over the ground again. In the later case of Com. v. Emery, 51 Pa. Superior Ct. 55, the true interpretation of the above-quoted words was thus concisely stated by our Brother Henderson: “The meaning of the word 'repute’ in the statute is not doubtful. It means the reputation of the person for chastity in the community in which she lives: that is, what she is reputed to be; not what she actually is, and the burden put on the defendant was to show that the prosecuting witness bore a bad reputation.” It logically follows that the court committed no error in confining the testimony upon this branch of the case to the general reputation of the prosecutrix' and excluding the offers embraced in these assignments.

We are constrained to say that the instructions (tenth assignment) relative to the bearing and effect of the testimony adduced as to the defendant’s good character were misleading. While the learned judge told the jury that the good character of a defendant if proved is an element which must be considered by the jury in any event and which must weigh in the defendant’s favor and which he must be given the benefit of, yet the context tended to detract from the full force of these general remarks and to lead the jury to suppose that the time when this kind of evidence would become important was when they reached the point where they were in doubt. It is settled beyond controversy in Pennsylvania that evidence of good character is substantive and must be treated as such; that it is not a mere makeweight to be thrown in to determine the balance in a doubtful case, but that it may of itself, by the creation of a reasonable doubt, produce an acquittal: Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322; Com. v. Cleary, 135 Pa. 64; Com. v. Sayars, 21 Pa. Superior Ct. 75; Com. v. Howe, 35 Pa. Superior Ct. 554, and Com. v. Howe, 38 Pa. Superior Ct. 208. Viewing the instructions embraced in this assignment in the light of the principle settled by these and other cases we are compelled to sustain this assignment.

The other assignments of error do not require particular discussion. But as the case must go back for a new trial we remark that there are expressions in the instructions quoted in the seventh and ninth assignments which may have had a tendency to mislead. We refer particularly to the concluding sentence of the instructions quoted in the ninth assignment and to that portion of the instructions quoted in the seventh assignment in which the suggestion seems to be made that the reputation of the prosecutrix concerning which the defendant’s witnesses testified might be “simply the idle talk and rumors of loafers standing along Hamilton street discussing women and children as they pass along.” We do not say that these expressions evidently made inadvertently would of themselves be sufficient ground for reversing the judgment and ordering a new trial. Nevertheless they are the proper, subjects of criticism and doubtless will be avoided on the next trial.

The judgment is reversed and a venire facias de novo is awarded.