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COMMONWEALTH v. PERRY (11/15/62)

November 15, 1962

COMMONWEALTH
v.
PERRY, APPELLANT.



Appeal, No. 276, Oct. T., 1962, from judgment of Court of Oyer and Terminer of Franklin County, Sept. T., 1961, No. 4, in case of Commonwealth of Pennsylvania v. Chester Perry. Judgment reversed.

COUNSEL

Kenneth F. Lee, with him George W. Teets, for appellant.

Jay L. Benedict, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 199 Pa. Super. Page 380]

OPINION BY WRIGHT, J.

Chester Perry was indicted in the Court of Oyer and Terminer of Franklin County in a charge of statutory rape. The alleged victim was defendant's fifteen year old daughter, born out of wedlock. The case was tried before President Judge DEPUY and a jury. After a verdict of guilty, defendant's counsel filed a motion for a new trial. The motion was denied, and sentence was imposed. This appeal followed.

Darlene Kay Perry testified that appellant had intercourse with her on the evening of June 6, 1961, on the front seat of an automobile in which they were driving homeward from Chambersburg. At the time, the vehicle was parked at the side of a rural township road. The girl did not make any outcry, or effort to seek aid, although cars passed during the occurrence. Appellant admitted taking his daughter home from Chambersburg on the evening in question, but denied

[ 199 Pa. Super. Page 381]

    having had intercourse with her. At the conclusion of his testimony, appellant offered to show that the alleged victim was not of good repute. The trial judge refused to permit the introduction of testimony to that effect. Since this was error of such serious import as to require the grant of a new trial, we deem it unnecessary to discuss the other questions raised on this appeal.

The pertinent section of The Penal Code, Act of June 24, 1939, P.L. 872, Section 721, 18 P.S. 4721, contains the following provision: "Upon the trial of any defendant charged with the unlawful carnal knowledge and abuse of a woman child under the age of sixteen (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". Appellant contends that he is entitled to assert (a) that he did not have carnal knowledge of the alleged victim, and (b) that her testimony warrants the inference that the carnal knowledge of which she complains was with her consent, wherefore he should be permitted to show that she was not of good repute. The trial judge took the position that alternative pleading should not be permitted in the criminal court. In his words: "Surely a defendant cannot blow hot and cold simultaneously. Can he have his cake and eat it too? His plea was 'not guilty'. But is his theory that he did not commit the proscribed act of intercourse at all; or that he committed it and argues justification or excuse? He must choose. His daughter's bad reputation for chastity, if proven, would be immaterial if he had no intercourse with her. Since the latter was his testimony, his daughter's reputation for chastity would be irrelevant. We so hold".

Our appellate cases have consistently held to the contrary. In Commonwealth v. Stewart, ...


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