dissenting:
The third assignment of error raises the question of the competency of the rebuttal testimony of Miss Emma Byers in substance that on the evening of November 15, 1906, at twenty-five minutes before six o'clock, the defendant assaulted her at the corner of East Pittsburg street and Alwine avenue, in Greensburg. This was at a different time and place than the assault on Miss Baker, and it was in no way connected with the latter assault, which occurred on St. Clair street a few minutes past six o’clock, nor was it material as to the identity of the person who assaulted Miss Baker. In short, the assault on Miss Baker was a separate and independent crime and, in my opinion, no sufficient reason appears to warrant the admission of Miss Byers’ testimony in rebuttal, while the defendant was on trial for assaulting Miss Baker. I think this evidence ought to have been excluded and the jury cautioned not to be influenced by the offer. The testimony of Miss Byers was admitted on the theory of contradicting the defendant. The assault on Miss Byers was not at the time and placó of the assault on Miss Baker and the former knew nothing material about the assault on the latter. I think the testimony of Miss Byers was very prejudicial to the defendant and that it was illegal. It was offered in rebuttal, after the defendant had gone on the stand and admitted his presencce so near the place *373of the Baker assault, at the time it was committed, that it was quite apparent that he might have been her assailant. Moreover, there was plenty of other evidence, already in, that the defendant was where he might have assaulted Miss Baker. In my opinion, the proof of the Byers’ assault was so in conflict with the general rule on this subject that citation of authorities hardly seems necessary. That there are exceptions to the general rule is not important because I can discover nothing in the evidence to take this, case out of the rule. It is difficult for me to escape the inference that the representatives of the commonwealth sought to get before the jury some evidence that the defendant committed a similar crime shortly before the alleged assault on Miss Baker, for which he was on trial. I think proof of a separate and distinct crime was allowed without any sufficient reason whatever. See Shaffner v. Commonwealth, 72 Pa. 60. I would sustain this assignment.
The sixth assignment of error is from the charge as follows: “On the other hand, — still speaking about the evidence with relation to reputation, — if upon the other hand, you are satisfied in Anew of all the evidence in the case, that the defendant is guilty, then the fact that he previously had a good reputation is not a defense.” The question here is how would the jury be likely to understand this summary of the law by the court. I think there is danger that it was understood to withdraw from their consideration the evidence of good character, if all the other evidence satisfied them of the guilt of the dev fendant; and it may have, practically, been an instruction to the jury that they could find him guilty from the weight of the evidence without giving him the benefit of a reasonable doubt. It is true that the learned court had previously told the jury, in the charge, that the defendant was entitled to the benefit of a reasonable doubt, yet it is likely that this summary (sixth assignment) may have found a lodgment in the minds of the jury and influenced them to find a verdict on the weight of the evidence, disregarding the reasonable doubt and dismissing the evidence of reputation as no longer presenting a defense. The defendant had made a strong showing in favor of his good reputation as a peaceable, law-abiding citizen. If *374the jury believed the evidence as to his character and reputation, they were asked to find that a young man of good education and excellent reputation, up to November 15, 1906, had on that day attempted to murder a young lady, an entire stranger to him, on a public street in Greensburg, without any apparent motive. It would probably seem to the jury unnatural and unreasonable to suppose him guilty. Surely then, in his hour of peril, he was entitled to have the court accurately instruct the jury as to the effect of evidence of good character as well as the rule of law on reasonable doubt.
The learned counsel for the commonwealth cites Commonwealth v. Miller, 31 Pa. Superior Ct. 309; Commonwealth v. Eckerd, 174 Pa. 137; Commonwealth v. Harmon, 199 Pa. 521; Commonwealth v. Dingman, 26 Pa. Superior Ct. 615, and argue from these authorities that the learned court did not err as alleged in the sixth assignment. But each and all of these cases and many others that might be cited, hold that the jury should be told, “that evidence of good character is substantive and positive proof in the prisoner's behalf, and may give rise to a reasonable doubt, which would not otherwise exist, by making it improbable that a man of such character would commit the offense charged; but when the jury is satisfied beyond a reasonable doubt under all the evidence, that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.”
No case has been cited and I have found, none, satisfying me that the court’s instructions to the jury (sixth assignment) ought to be sustained. I cannot agree that the evidence of good reputation on behalf of the defendant would ever cease to be a substantive defense till a verdict was found. It might not be sufficient in the opinion of the jury, to overcome the other evidence and raise a reasonable doubt, and work an acquittal, but the defendant was entitled to have it correctly submitted to the jury. There were several other items of evidence that might have gone on the scales with the evidence of good reputation, and, together, they might have raised a reasonable doubt. But if the case of Commonwealth v. Cate, *375220 Pa. 138, is to be followed something more is required than has been heretofore understood by many judges from the cases last above referred to. In the latter case, the learned judge below charged that “where the jury is satisfied beyond a reasonable doubt of the defendant’s guilt under all the evidence, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.” Of this instruction the Supreme Court said: “While this instruction might be understood by the legal mind as fairly within the rule above stated, it would be confusing to jurors and might lead them to disregard evidence of good character altogether,- if from all the other evidence they reach the conclusion that defendant was guilty. This would clearly be error. Under these circumstances we cannot say no harm was done appellant in this respect although the case in other respects was tried with exemplary care and the rulings of the learned trial judge were fair and impartial. For this reason the judgment must be reversed.”
It is contended that the court did properly instruct the jury in other portions of the charge, but that does not render harmless what I regard as error stated in the sixth assignment: Where the court, in its charge to the jury, states the same proposition of law twice, the first time correctly, the second time incorrectly, it will be inferred that the latter statement is likely to have made a lodgment with the jury, and in some instances, the judgment will be reversed on this ground: Syllabus of Rice v. Commonwealth, 100 Pa. 28.
I would sustain the third and sixth assignments of error, and reverse the judgment and remit the record to the court below for a new trial of the defendant.
Henderson, J., unites in this dissent.