
    Commonwealth v. Howe, Appellant.
    
      Evidence — Striking out evidence — Opinion—Hearsay—Answer not responsive to question.
    
    Where a question, is properly propounded to a witness, but the answer is not responsive to the question, containing both matters of opinion and hearsay, the answer should be stricken out by the trial judge.
    It is only when declarations accompany a transaction so as to be wrought into it, and to emanate from it that they can be rightly regarded as excepted from the rule that excludes hearsay.
    
      Evidence — Reputation—Criminal law — Qualification of witness.
    
    Before a witness is qualified to testify in a criminal case as to the general reputation of the prisoner for chastity, it must appear that he is acquainted with the general reputation of the prisoner with respect to chastity in the neighborhood in which the prisoner resides. The mere fact that the witness heard the prisoner’s reputation discussed in a town other than that in which the prisoner resided, does not qualify the witness to testify on the subject in the absence of evidence that the prisoner was known in the place where the discussion took place, and had acquired a reputation there.
    
      Criminal law — Evidence—Previous good character — Good character.
    
    Evidence of good character is substantive evidence and not a mere makeweight introduced into a doubtful case. Such evidence may have the effect to create a reasonable doubt, and thereby produce an acquittal, and the weight to be given to it is for the jury.
    A distinct issue is not raised by evidence of good reputation, but it is to be taken into consideration with all of the other evidence against and for the accused. When the jury is satisfied beyond a reasonable doubt of the guilt of the defendant it is their duty to convict, but this conclusion is only to be reached after having given due regard to the evidence of good reputation along with the other testimony in the case.
    
      Criminal law — Rape—Statutory rape — Women children under the age of sixteen years.
    
    Under the Act of May 19, 1887, P. L. 128, enacted for the protection of women children “under the age of sixteen years,” a woman is sixteen years of age on the day before her birthday; and a man who has relations with a woman on that day, cannot be convicted of violating the act.
    The phrase “good repute” in the proviso of the Act of May 19, 1887, P. L. 128, means the general reputation for chastity of the woman in the community in which she lives. The law presumes that the woman is a person of good repute, and the commonwealth was not required to prove the fact. If she does not sustain that reputation, the defendant must show it.
    Argued Dec. 2, 1907.
    Appeal, No. 44, Jan. T., 1908, by defendant, from judgment of 0. & T. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver; JJ.
    Reversed.
    Indictment for. an offense against the act of May 19, 1887.
    At the trial counsel for the commonwealth made the following offer:
    Mr. Balentine: I propose to show by the witness at this time that her clothing indicated that she had had sexual connection with this defendant or somebody had, to be followed by evidence that she had it with the defendant.
    Mr. Lewis: We object to that.
    The Court: The objection is overruled. Exception noted for the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. Describe the condition of her clothing, if there was anything unusual about them the night of May 14? A. Yes, sir; there was. Q. What was it? A. Her clothing was a sight to see; anybody could see what had been going on with that little girl.”
    Mr. Taylor: We object to the question and move that it be stricken out. 1
    The Court: Let it be stricken out.
    Mr. Balentine: “ Q. If there was anything to indicate that she had connection with anybody, will you state it? A. There was, and she admitted it.”
    Mr. Taylor: That is objected to and we move to strike out the answer.
    The Court: The objection and motion are overruled. Exception noted fór the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. Did you have any talk with her that night? A. I did. Q. On what part of her clothing did you notice these marks? A. On her underclothing.”
    Mr. Taylor: We ask to have the answer stricken out.
    The Court: Not having been objected to the motion is disallowed. Exception noted for the defendant at whose request a bill is sealed. [1]
    R. N. Dersheimer, a witness called by the commonwealth, on the stand under direct examination.
    Mr. Balentine: “Q. Mr. Dersheimer, where are you engaged in business? A. Wilkes-Barre. Q. What is your business down there? A. Bank clerk. Q. One of the trust companies? A. Yes, sir. Q. Your home is where? A. In Wilkes-Barre for two years. Q. Where was your home before that? A. In Dalton. Q. You have moved back to Dalton? A. Yes, sir. Q. Were you acquainted while you were there with the general speech of the people of the borough, the general talk of the community? A. Hardly, in two years back. Q. Before that were you? A. Yes, sir. Q. Were you familiar with the general speech of the people? A. Before that I was. Q. Before two years ago? A. Yes, sir. Q. Did you hear among other topics of discussion the reputation of Carl Howe discussed in Dalton? A. Not prior to that. Q. When did you hear it discussed, if at all? A. I haven't heard it discussed. Q. Did you never hear anything about his reputation? A. Not in a general way. Q. I am not asldng you that, I am asldng you if you have heard his reputation discussed, you say you are familiar with the speech of the people, have you heard his reputation discussed? A. I have. Q. What is his reputation for chastity in Dalton, good or bad?”
    Mr. Taylor: Objected to that the witness is not qualified.
    Mr. Balentine: “Q. What was Carl Howe’s reputation for chastity at that time? A. I didn’t know him then. Q. What was his reputation then? A. How could I tell? I didn’t know the man.”
    The Court: “Q. If he had a reputation that you learned of from the speech of the people, that is the inquiry? A. I don’t know what it is, I don’t know what it was then.”
    Mr. Balentine: “Q. Have you heard it since, anything of his reputation for chastity? A. Yes. Q. When? A. A couple of years ago. Q. What is his reputation now from what you heard then, what was his reputation then for chastity, good or bad?”
    Mr. Taylor: Objected to because the witness is not qualified.
    The Court: Objection overruled.
    The Court: “ Q. Is my understanding correct or incorrect of what you said, that in a general way two years ago you had some knowledge of the defendant’s reputation? A. I did not two years ago. Q. When was it? A. Since two years ago, within the past two years.”
    Mr. Balentine: "Q. Where were you living at that time, the time you heard his reputation discussed? A. I was living at Dorrancetown. Q. How long had you been living at Dorrancetown at that time? A. Possibly six months. Q. Previous to that where had you lived? A. Dalton. Q. How long had you lived in Dalton? A. Ten years, perhaps. Q. You were familiar in a general way up until that time with the speech of the people and the general topics of discussion in Dalton? A. Yes, sir. Q. After you moved to Dorrancetown you heard his reputation discussed? A. I did. Q. From that discussion what would you say his reputation for chastity was, good or bad? A. I should say bad.”
    Mr. Lewis: We object to this and move that it be stricken out.
    
      The Court: The motion to strike out is refused. Exception noted for the defendant at whose request a bill is sealed. [5]
    E. H. Fisk, called by the commonwealth, on the stand under direct examination.
    Mr. Balentine: “Q. Have you heard Carl Howe’s reputation for chastity discussed up there (LaPlume) ? A. I have a little. Q. Have you heard the reputation of Carl Howe discussed up there, his reputation for chastity, whether at Dalton or La-Plume? A. I have at Dalton.”
    Mr. Lewis: Objected to; the witness is not qualified.
    The Court: The objection is overruled. Exception is noted for the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. You say you are acquainted with the general speech of the people in Dalton? A. Yes, sir. Q. Among the things that they have talked about, have you heard the reputation of Carl Howe discussed in that borough? ”
    Mr. Lewis: Objected to.
    The Court: It has already been objected to and the objection overruled. Exception noted for the defendant at whose request a bill is sealed. [6]
    Mr. Balentine: “Q. What is his reputation for chastity in that borough? A. Not very good.”
    The court charged in part as follows:
    The evidence upon which, if found guilty, the defendant must be convicted as charged in the second count of the indictment, must convince you that he had connection with the girl at some time before she was sixteen years of age and within a period of two years prior to the date of the indictment, which would cover a period of two years back of September 9, this year, and not later than December 3, last year. [So it comes down to this, if he is found guilty it must be upon evidence that Convinces you that he had connection with the girl between December 3, last year, and September 9, 1905.] [15] It is alleged by the commonwealth that these relations began between the defendant and this girl in the spring of 1905, but that is the period that the indictment covers, the period between September 9, 1905, and December 3, 1906, a period of something upwards of a year. [So if you are satisfied beyond a reasonable doubt that he had connection with the girl between these dates, then he should be convicted as charged in that count, namely, the second count of the indictment.] [16] Evidence has been admitted tending to show the commission of the offense both before and after those dates. That was admitted for the mere purpose of throwing light upon the disputed relations of the girl and the defendant during the time covered by the indictment.
    The contention of the commonwealth is that at the age of fourteen, or thereabouts, the girl was led astray by the defendant, and that having in some way gained her consent at that time he continued to meet her frequently, and that their sexual relations continued until last May, when they were discovered. That is the contention of the commonwealth in a nut shell as undoubtedly you all understand. [There is evidence that the offense was committed frequently in 1905 and 1906, within the time that we have referred to, that is, the time covered by the indictment. I have in mind particularly the testimony of the girl in regard to her relations with the defendant during the fall of 1905, and the spring, summer and fall of 1906, down to the night before her sixteenth birthday.] [17] It may be that she was infatuated with the defendant; it may be that she practiced systematic deception upon her father; it may be that she took advantage of the father’s absence to meet the defendant. Be that as it may, if the defendant took advantage of these circumstances to have clandestine meetings with this girl and in that way led her astray, he would be guilty, for the simple reason that at that age the girl had no consent to give.
    In addition to his own denial the defendant has put in evidence some testimony with regard to a previous good character for chastity. That is evidence which he has a right to have considered by the jury. To be of any avail good reputation must be established as a fact like any other fact that is in issue in the lawsuit. Therefore, in order to enable him to ask the jury to give him the benefit of a previous good reputation for chastity he must show it by evidence that satisfies you that it existed as a fact and that he had such reputation. If it be doubtful upon the testimony of his witnesses, then it is not established as a fact, for there must be enough to warrant the jury' in finding as a matter of fact that he had such reputation before he can appeal to it and ask it to be thrown in the scale in his favor. If it be established and the jury find as a fact that he had such reputation, then it is for them to give it such weight as they in their good judgment deem it to be entitled to. [Where proof of a defendant’s guilt is convincing to a jury it is not met and overthrown by a previous good reputation, no matter how well established, but where a case is contested, where it is conflicting, a defendant has the right to have such reputation considered for what it may be worth, and it may in some instances create a reasonable doubt, but a doubtful reputation, an ambiguous and equivocal reputation would not answer for that purpose. You have a right to consider and scrutinize the testimony upon which the defendant relies in claiming a previous good reputation.
    In addition to that, you have the right, you are in duty bound to consider the counter evidence. There is evidence both ways here.] [21] There is evidence on the part of the commonwealth that would, if believed, tend to negative the inference that he did have such good reputation. So, if upon the whole evidence you are not prepared to say he had as a matter of fact a good reputation for chastity prior to the alleged offense in this case, then that falls out of the case and is not to be considered.
    I think I have already told you so that you understand that if there be a reasonable doubt in the case that doubt belongs to the defendant and he should be acquitted. But the law means a reasonable doubt when it uses that term, It does not mean a possible doubt, a fanciful doubt nor an ingenious doubt, but it means one that naturally arises out of the evidence when it is fairly and impartially considered by a fair and impartial juror. If after such fair and impartial consideration of the evidence, out of the evidence itself, and not from some other source, there be a doubt still remaining in your minds as to the defendant’s guilt, then he should be acquitted, otherwise he should be convicted.
    
      February 28, 1908:
    If convicted he should be found guilty as charged in the second count of the indictment, because the only alternative under the statute would be where a defendant is so indicted and acquitted of the second count, he might under certain circumstances and in a certain state of the evidence' be convicted of fornication, but that is only where the girl had a bad reputation, was a girl of bad repute. [There is no evidence here, it is not charged by the defendant at all that the girl had any bad repute in any way before the time of her alleged relations with the defendant.] [25]
    Verdict of guilty, upon which judgment of sentence was passed.
    
      Errors assigned were (1,5, 6) rulings on evidence, quoting the bill of exceptions; (15-17, 21, 25) above instructions, quoting them.
    
      R. H. Roígate, with him Taylor & Lewis, for appellant.—
    The object of the legislature was to protect the innocence of youth, but if that innocence was already gone, there was no occasion to protect it: Commonwealth v. Davis, 3 Pa. Dist. Rep. 271.
    
      Joseph O’Brien, district attorney, with him Clarence Balen-tine, for appellee.
   Opinion by

Henderson, J.,

Without discussing the numerous assignments of error seriatim, we shall consider those deemed material to the determination of the case. The first relates to the refusal of the court to strike out a part of the testimony of George W. Patterson as set forth in the assignment. The question propounded to the witness was perhaps not objectionable, but the answer thereto was not legally responsive and not competent. It not only stated an opinion or conclusion of the witness as to the condition of his daughter’s clothing, but included a statement as to what she had said. If the witness had stated the facts with reference to the clothing, thereby enabling the jury to draw the inferences therefrom, the answer would have been responsive to that extent, but as it was given it presented no basis for a conclusion by the jury on the facts. A description of the condition and not the opinion of the witness was presumably what the commonwealth intended to introduce and the answer resulted, probably, from the. misapprehension by the witness of the legal purport of the question. The record does not present any fact which made competent that part of the answer relating to the admission made by the daughter of the witness. It does not even pretend to be a recital of her language, but whether intended as a repetition of what she said or as the opinion of the witness as to the meaning of her language it was not competent. It related to a transaction not charged in the indictment and was not concomitant with the act to which the declaration referred. How long after the occurrence, shown by the commonwealth to have taken place on May 14, the alleged declaration was made does not appear. It was evidently a considerable time thereafter and the declaration did not spring from the act. It is only when the declarations accompany the transaction so as to be wrought into it and to emanate from it that they can be rightly regarded as excepted from the rule that excludes hearsay: Whar. Crim. Ev. (9th ed.) sec. 262. The motion to strike out this evidence should have been allowed.

The defendant introduced evidence to sustain his general reputation for chastity, to which the commonwealth replied by calling several witnesses, one of whom was R. N. Dersheimer. His testimony was objected to on the ground that he had not knowledge that qualified him to speak on the subject. The defendant lived in the borough of La. Plume. The witness had been a resident for a number of years of the borough of Dalton, near La Plume, but had moved to Dorrancetown. About six months after he moved to Dorrancetown he heard the reputation of the defendant discussed. The witness was then asked: “Q. From that discussion what would you say his reputation for chastity was, good or bad? A. I should say bad.” It was not shown by the witness that the defendant was so generally known in Dalton as to have a reputation there. On the contrary, the witness did not know the defendant in Dalton and never heard his reputation discussed in that borough; nor did it appear from his examination that he was acquainted with the general reputation of the defendant for chastity anywhere. That he heard the subject “discussed”' at Dorrancetown neither created a reputation nor qualified the witness to speak of it in the absence of evidence that the defendant was known in the latter place and had acquired a reputation there. It does not follow that one has a reputation which may be the subject of evidence because a witness has heard it discussed. A discussion may be engaged in by one person, but it will not be pretended that a reputation in a legal sense, good or bad, could thereby be created. The general reputation of the defendant was involved, not what some particular individual may have said of him: Kimmel v. Kimmel, 3 S. & R. 336. There are probably few persons in any community against whom disparaging remarks are not made by someone, but these do not make a general reputation. In Wike v. Lightner, 11 S. & R. 198, it was said “the question is, what is said by people in general? That is the true point of inquiry, and everything which stops short of it, is incorrect.” Before the witness is qualified to speak it must appear that he is acquainted with the general reputation of the person with respect to the particular character involved, in the neighborhood in which he resides. If it appear that he has this knowledge he is competent to testify concerning it; otherwise, not. This course of inquiry was said by Judge Thompson in Bogle’s Executors v. Kreitzer, 46 Pa. 465, to have acquired the binding force of a rule: Whar. Crim. Ev. (9th ed.) sec. 487; United States v. Vansickle, 2 McLean, 219; State v. Randolph, 24 Conn. 363; Bucklin v. State, 20 Ohio, 18; People v. Mather, 4 Wend. 229; Cheritree v. Roggen, 67 Barb. 124; Kelley v. Proctor, 41 N. H. 139. Persons of blameless lives are not ordinarily subject to hostile criticism and a good reputation may be shown by the evidence of witnesses that they have never heard the character of the person spoken against, as well as by affirmative evidence of the favorable speech of the people of the vicinity; but a bad reputation is only shown by evidence of adverse comment on the person’s conduct by the people generally in the neighborhood where he lives. It is necessarily implied that the person inquired about should have been so related to the community in which he lived or acted as to have established a general reputation. The authorities show that the witness was not qualified to testify on the subject of reputation'and the defendant’s objection to his competency should have been sustained, and the evidence having been admitted the motion to strike out should have been granted. The fifth assignment is sustained.

A similar objection was made to the evidence of E. H. Fisk, a witness called for the commonwealth in rebuttal on the subject of reputation. Mr. Fisk lived in the borough of Dalton, about two miles from where the defendant lived in the borough of La Plume. He was not acquainted with the reputation of the defendant in the borough of La Plume. He had heard it discussed at Dalton. Who discussed it and to what extent was not disclosed by his testimony. Whether the defendant was generally known in the borough of Dalton does not appear. The witness was not asked whether he was acquainted with the general reputation for chastity of the defendant in the place where he lived; nor did he state that he knew his general reputation anywhere. The difficulty of getting a character witness to understand the distinction between his own opinion of the person inquired about and the reputation which he sustains among the people of his own neighborhood makes it important that the examination should be so conducted that the opinion, sometimes prejudiced, of the witness should not be made a substitute for the general reputation which alone is competent in such an investigation, and the propriety of the rule is well illustrated by the course of examination adopted when this witness and Mr. Dersheimer testified. The same reasons which prevail against the qualification of the latter exclude the former and sustain the sixth assignment.

The sixteenth anniversary of the birth of Madeline Patterson occurred December 3, 1906. Evidence was offered by the commonwealth showing illicit relations between her and the defendant on the night of December 2, 1906, and the court charged the jury that the defendant might be convicted if he had such relation with the girl between December 3, 1906, and September 9,1905. The defendant contends that Madeline Patterson was sixteen years of age on December 2,1906. The prosecution was brought under the Act of May 19,1887, P. L., 128. The persons protected by that act are women children under the age of sixteen years.” The 15th, 16th and 17th assignments of error present the question, when was Madeline Patterson sixteen years of age? Numerous authorities hold that a minor attains his majority on the day preceding the twenty-first anniversary of his birth, or on the day preceding the anniversary of birth where a maj ority is fixed by statute at another age. On that day he may execute a deed or make a will or vote as an elector. If an apprentice, his term of service expires that day and, generally speaking, he may perform all the acts of which he is capable after he has passed his majority, and, as the law recognizes no fractions of a day, this ability exists during the whole of the day preceding the anniversary of birth. In Bardwell v. Purrington, 107 Mass. 419, it was decided that a person who was born on the eighth day of September, 1852, would become of the full age of twenty-one years if he should live to the seventh day of that month in 1873. To the same effect are Wells v. Wells, 6 Ind. 447; State v. Clarke, 3 Harr. 557; Hamlin v. Stevenson, 4 Dana, 597; Ross v. Morrow, 85 Texas, 172. Where a statute provided that as to defendants between the ages of nine and thirteen years the burden of proof was on the state to show accountability for crime, the defendant was held to have been thirteen years of age the day preceding the anniversary of his birth: Linhart v. State 33 Texas Cr. App. 504. This decision is an exact authority in support of the appellant’s position. In Griffiths’s Case, 1 Kulp, 157, it was held that one who voted on the day preceding the twenty-first anniversary of his birth was a qualified elector. The same rule is stated in FitzHugh v. Dennington, 6 Mod. 259; 1 Blackstone’s Com. 463; 2 Kent’s Com. 233; 1 Jarman on Wills (6th ed.), 35. Our attention has not been called to, nor have we found, any case holding a contrary doctrine. The subject is discussed in 1 Minor’s Inst. 514, and in a comment thereon by Proféssor Lile in his notes, in both of which the contrary view is taken, but the latter author concedes that the authorities have been against his view for 200 years and that it does not seem possible to shake them. Such being the state of the law it is reasonable to assume that the act of 1887 was passed with reference thereto and that it was the purpose to fix the age of consent with regard to a particular day rather than the hour of the birth of the person concerned. In legal intendment Madeline Patterson was sixteen years of age on December 2, 1906. It follows that (that part of the instruction of the court which permitted the jury to convict the defendant for any act committed on December 2 was erroneous. The 15th, 16th and 17th assignments are sustained.

The 21st assignment relates to the charge of the court on the subject of the defendant’s evidence of good reputation. We think the jury may have been misled by the language of the learned trial judge. It was in effect that if the jury was convinced by the other evidence in the case that the defendant was guilty then evidence of a previous good reputation, no matter how well established, would not overcome the case presented by the commonwealth, but that where a case is conflicting the defendant had the right to have his reputation considered for what it may be worth. It is now a well-established proposition that evidence of good character is substantive evidence and not a mere makeweight introduced into a doubtful case. Such evidence may have the effect to create a reasonable doubt and thereby produce an acquittal, and the weight to be given to it is for tfie jury. It might be that a defendant confronted by very persuasive evidence of a criminating character could present evidence of good reputation of such force that it alone would produce such an impression of improbability as to the crime charged that doubt would arise in the minds of the jurors and an acquittal follow. A good reputation is a substantive fact, like any other, tending to establish the defendant’s innocence: Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322. It is true that where an indubitable case has been made out against the defendant his reputation for good character will not avail, but that may be said of any other evidence introduced in his behalf, however positive and direct it may have been, as was remarked by Judge Gordon in the case last cited. In a doubtful case the defendant is entitled to an acquittal because of the failure of the commonwealth to make out a conclusive case, and he does not need evidence of good character to help him out. If such evidence is only to be taken into consideration when the case is doubtful it is to destroy its value altogether. The accused has a right to appeal to the jury on evidence of his good reputation, even against the most damaging testimony, and of its value the jury are the sole judges. In Hanney v. Com., 116 Pa. 322, the court charged the jury, “ If you believe that the testimony in this case clearly points out the guilt of John Hanney, then his previous good character should have no weight in determining the question of his guilt or innocence.” There was the further instruction that if the jury considered the case of the commonwealth a weak one, though sufficient for conviction, the testimony of good character ought to raise a reasonable doubt which would inure to the acquittal of the defendant. Of this instruction the Supreme Court held that even where the defendant’s guilt was clearly established by other evidence it would be error to instruct the jury to disregard that of good character, for it was for them to determine what effect such evidence would have in connection with what was presented by the commonwealth. Com. v. Eckerd, 174 Pa. 137, and Com. v. Harmon, 199 Pa. 521, do not qualify these adjudications. In each of the cases the jury was instructed that evidence of good character was positive and important testimony and not a mere makeweight and was to be taken into consideration with all the other evidence in determining the defendant’s guilt. A distinct issue is not raised by evidence of good reputation, but is to be taken into consideration with all of the other evidence against and for the accused. When the jury is satisfied beyond a reasonable doubt of the guilt of the defendant it is their duty to convict, but this conclusion is only to be reached after having given due regard to the evidence of good reputation along with the other' testimony in the case. The instruction of the learned trial judge is so similar to that reviewed in Hanney v. Com., 116 Pa. 322 that we feel constrained to sustain this assignment of error.

The 25th assignment criticises the instruction of the court to the jury that there was no evidence that the girl was a person of bad repute. The contention of the appellant’s counsel is that the phrase “ good repute ” in the proviso of the statute is synonymous with “ good character, ” and that the words refer not to what the person is reputed to be, but to what he really is. If the statute named “character” instead of “repute” there would be a basis for the appellant’s argument. The critical distinction between character and reputation is well known; one term representing the combination of qualities or peculiarities which compose one’s mental traits and constitute his ethical individuality, while reputation is reported or attributed character — the estimate attached to a person by the community. This distinction has not been observed generally in the statutes and decisions of the courts, however, and many cases in this state show that “character” and “reputation” are used interchangeably. In Kimmel v. Kimmel, 3 S. & R. 336 it is said that “character” is a term convertible with “ common report, ” and in the same case Judge Duncan said, “Character and reputation are the same. The reputation which a man has in society is his character.” In Wike v. Lightner, 11 S. & R. 198, Chief Justice Tilghman expressed the same thought in these words: “In order to discredit a witness you can examine only to his general character.” Similar expressions in the same opinion show plainly that character was used in the sense of reputation. The same forms of expression appear in Bogle’s Executors v. Kreitzer, 46 Pa. 465; Hanney v. Com., 116 Pa. 322; Heine v. Com., 91 Pa. 145, and other cases. There is much support, therefore, for the position that if the word were “ character ” it should be -understood to mean imputed rather than actual character, but we need not go so far, for the expression is “repute.” This means character attributed; public estimate; established opinion; reputation. Such was the interpretation placed upon the same language in the forty-first section of the act of March 31, 1860. That section made the seduction of a female of good repute under twenty-one years of age, under promise of marriage, a misdemeanor. In Oliver v. Com., 101 Pa. 215, the court held the words “good repute” to be equivalent to good reputation, and that in a trial on an indictment under that act the burden was on the commonwealth to prove that the woman offended against was a person of good reputation for chastity. This interpretation is in harmony with the definitions of the word and we see no reason why it is not strictly applicable here. The “repute” at issue was the general reputation for chastity of Madeline Patterson in the community in which she lived. Her acts of unchastity prior to the time covered by the indictment, disclosed by her own admissions, were not evidence that she was not of good repute for chastity. The law presumes that she was a person of good repute and the commonwealth is not required to prove the fact. If she did not' sustain that reputation the defendant must show it: Com. v. Allen, 135 Pa. 483. The court was not in error, therefore, in charging as set forth in the 25th assignment.

No exceptions were taken to support the 7th, 8th, 9th, 11th and 12th assignments and the questions presented are not properly before us for determination. The other assignments are not sustained.

The judgment is reversed and a new venire awarded.  