
    Commonwealth v. Emery, Appellant.
    
      Criminal law — Statutory rape — Age of defendant — Evidence.
    1. A conviction for statutory rape will not be reversed because the record does not affirmatively show that the defendant was over sixteen years of age, where it appears that the defendant went on the stand as a witness in his own behalf; that he testified that he was in the coal and ice business and employed an assistant, was married and had a wife and five children, and that he was referred to by his counsel as a married man, and in course of the trial was frequently called a man.
    
      Criminal law — Statutory rape — Repute of prosecutrix — Character of prosecutrix — Charge of court.
    
    2. On the trial of an indictment for statutory rape the trial judge commits reversible error, if in charging on the question of the “good repute” of the prosecutrix, he gives to the jury the understanding that the question for them to determine was not how she was esteemed by the public, but what her real character was. The defendant in such a case is not required to show that the prosecutrix was'immoral; but that in the community in which she lived her reputation for chastity was bad.
    Argued May 6, 1912.
    Appeal, No. 67, Oct. T., 1912, by defendant, from judgment of Q. S. Phila. Co., August Sessions, 1911, No. 11, on verdict of guilty in case of Commonwealth v. Frank Emery.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, Jj.
    Reversed.
    Indictment for statutory rape; Before Carr, J.
    At the trial the defendant'presented the following point:
    
      The proof of age being insufficient under the fourth count of Bill No. 11, August Sessions, 1911, charging rape, etc., the verdict of the jury must be “not guilty” on this count. Answer: Refused.
    The court charged in part as follows:
    [Not only that, but a question also for you to consider is as to the repute of the girl, because if you believe that she is not of good repute, then there can be no higher verdict than that of fornication. By the word “repute” is meant character, and if you find from the evidence produced on the part of the defendant that this girl was of an immoral character, it will affect your verdict. You have on that point the testimony of Rosie Waters and of Mabel Lumpkins. By “immoral character” is meant, of course, the morals and reputation a person has. On the other hand, the contention is made that that was just simply idle, foolish, childish talk on a corner where these girls were, and that, in fact, it had no substance, and does not rise to the degree which this clause of the statute contemplates. However, as I say, if you believe that she was not of a good character and was immoral, then that fact is to be weighed in connection with your verdict, and there should be no higher degree than of fornication. On the other hand, if you believe the girl was of a good moral character, then you may consider all of the other facts bearing upon the proof of that offense.]
    Verdict of guilty,' upon which the defendant was sentenced to imprisonment for seven years. Defendant appealed.
    
      Errors assigned were (1, 2) above instructions, quoting them.
    
      William T. Connor, with him John R. K. Scott, for appellant.
    — There was no evidence that defendant was over sixteen years of age: Com. v. Walker, 33 Pa. Superior Ct. 167; Stephenson v. State, 28 Ind. 272; Ihinger v. State, 63 Ind. 251.
    There was error in the charge of the learned trial judge: Carpenter v. People, 8 Barb. 603; Andre v. State, 5 Iowa, 389; McDermott v. State, 13 Ohio St. 332; Leverich v. Frank, 6 Oregon, 212; Com. v. McCarty, 2 Clark, 351; Oliver v. Com., 101 Pa. 215; Com. v. Howe, 35 Pa. Superior Ct. 554.
    
      Chas. Edwin Fox, with him Samuel P. Botan, for appellee.
    July 18, 1912:
   Opinion by

Henderson, J.,

The record presents two assignments. Complaint is made in the first that a conviction was permitted by the court without proof of the age of the defendant. Evidence on that subject was held to be necessary in Com. v. Walker, 33 Pa. Superior Ct. 167, and if the case before us were like that, destitute of evidence on the subject, this assignment should be sustained. But an examination of the testimony discloses the fact that there was evidence from which the jury must have concluded that the defendant was more than sixteen years of age. He was called as a witness in his own behalf and was therefore seen and identified by the jurors; he testified that he was in the coal and ice business and that he employed an assistant; that he was married and had a wife and five children. He is referred to by his counsel as a married man, and in numerous other places in the examination of the witnesses he is called a man. This certainly gave the jury information as to the material question whether the defendant was more than sixteen years old and the case is unlike Com. v. Walker, 33 Pa. Super. Ct. 167, in that respect. There was abundant evidence to warrant the conclusion that the defendant was within the class to which the statute applies as to the matter of age. -

The defendant was convicted under the first section of the act of May 19,1887, P. L. 128. The second assignment relates to the instruction of the court on the subject of the “good repute’’ of the prosecuting witness. The particular portions of the charge objected to are these: “By the word ‘repute’ is meant character, and if you find from the evidence produced on the part of the defendant that this girl was of an immoral character, it will affect your verdict. . . . However, as I say, if you believe that she was not of a good character, and was immoral, then that fact is to be weighed in connection with your verdict, and there should be no higher degree than of fornication. On the other hand, if you believe the girl was of a good moral character, then you may consider all of the other facts bearing upon the proof of that offense.” 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. But the charge of the court must have given to the jurors the understanding that the question was not how she was esteemed in this respect by the public but what her real character was. When it is said of one that she is of an immoral character that is understood to relate not to her reputation but to her conduct of life. Twice in the part of the charge quoted the jury is told that if the girl was immoral that fact was to be weighed in making up the verdict. But the defendant was not required to show that she was immoral. It might be very difficult to prove that. What the statute permitted him to do was to show that in the community in which she lived her reputation for chastity was bad. It is conceivable that such a reputation might attach to a person who is not immoral and the defendant was entitled to any protection which the statute gave him in this respect. The offense is of a very different ■character where there is bad repute and consent. It is-important, therefore, that the distinction between reputation and actual character be made clear to the jury, They could not be criticised for concluding from the charge that the defendant must prove that the girl was an immoral person, in order to reduce the offense to fornication. We’ are therefore brought to the conclusion that the second assignment must be sustained.

The judgment is reversed and a v. f. d. n. awarded.  