F. Joseph Thomas, Meadville, for appellant.
P. Richard Thomas, Asst. Dist. Atty., Raymond P. Shafer, Dist. Atty., Meadville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Gunther, JJ.
[ 171 Pa. Super. Page 106]
In this criminal case, the defendant, Ray Sutton, was tried and convicted under an indictment which charged that on June 24, 1951, he did 'unlawfully and carnally know and abuse [his stepdaughter] one Carol Penniman, also known as Carol Sutton, she being under the age of sixteen years and she being the daughter of the wife of Ray Sutton'. After his motion for a new trial was refused and sentence imposed, the defendant took this appeal.
The Act of June 24, 1939, P.L. 872, sec. 721, 18 P.S. § 4721, provides as follows: 'Upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen
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(16) 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 rape, and be convicted of fornication.' It is the repute of the girl which constitutes a defense, not her acts, and the question is what she is reputed to be, not what she actually is. Commonwealth v. Wink, 170 Pa. Super. 96, 84 A.2d 398; Commonwealth v. Stewart, 110 Pa. Super. 279, 168 A. 528. Specific acts of misconduct are inadmissible in criminal actions to prove a bad general reputation. Commonwealth v. Lyons, 142 Pa. Super. 54, 15 A.2d 851.
The appellant's first and principal contention is that the trial court erred in its charge to the jury relative to the repute of the victim of the offense. During the course of the charge the court stated: 'And the defendant, if you would find her unchastity arose from his acts, cannot come into court and rely upon that bad reputation that he gave her, in order to relieve him from any of his responsibilities for the offense. In other words, if you would find that he debauched her, and that she thereby from that relationship acquired a bad reputation, that would not benefit him in any way.' The appellant contends that under the authority of Commonwealth v. Howe, 42 Pa. Super. 136, this portion of the court's charge was reversible error, but with this contention we cannot agree.
In the Howe case, in reversing the trial court, we held that the defense of ill repute was not adequately brought to the attention of the jury; that from the charge the jury 'would be probably led to conclude' that the only available defense was the denial of the commission of the act; that the court erred in charging that by bad repute 'is meant bad repute prior to the time of any unlawful relations that she might have had with defendant', stating, 42 Pa. Super. at page 143: 'The period referred
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to in the statute as the time when the woman-child was not of good repute is the time when the act was committed which constitutes the crime. * * * To permit an inquiry as to how this repute became established would introduce an issue in the case entirely apart from the charge in the indictment and one not warranted by the statute. * * * [42 Pa. Super. page 144] * * * Under the charge the jury could have been satisfied that the girl was not a person of good repute and still have convicted the defendant, because they inferred or believed ...