Opinion by
These defendants, sailors in the United States Navy, were charged in the separate counts of one indictment with fivе offenses, referred to thus in the charge of the trial judge: “Number 1: Assault, being armed with an offensive weapon with intent tо rob; Number 2: Assault, together with other persons, with intent to rob; Number 3: Bobbery, being armed with an offensive weapon; Number 4: Bobbery, together with other persons; Number 5: Bobbery, and at the commission thereof beating, striking and ill-using”. The five counts of thе indictment, in different language charged a single offense al: leged to have been committed on January 30, 1950, on Eighteenth Street near Market Street in down-town Philadelphia. The trial judge withdrew counts one and three from the jury, because there was no evidence that defendants used an offensive weapon. The jury convicted bоth defendants on the remaining three counts of the indictment. Although first offenders, and minors, they *588 were sentenced to from five to twenty years in the Eastern State Penitentiary.
The testimony of the prosecutor is that he met the defendаnts in a tap room on Market Street near Sixteenth Street in Philadelphia, referred to as The Spigot abоut 9:80 on the evening in question and spent some time with them there, drinking beer. They all left together about 10:30 intending to go to аnother saloon. The testimony of the prosecutor is that as they Avere walking along Eighteenth Street at a рoint about 100 feet north of Market Street the defendants assaulted him and robbed him of a pen and pencil, а twenty dollar bill and some small change. Like money was found on the person of one of the defendants and the pen and pencil were found under the seat of the police car in which they were placed Avith the prosecutor after arrest.
There is no merit in defendants’ contention that the trial judge erred in failing to chаrge on circumstantial evidence. But there Avas reversible error in the failure to define the offenses chаrged in the indictment. The trial judge made no reference to the charges except to name them, in the language we have quoted above, and to withdraw two of them from the jury. The multiplication of charges in this casе, without apparent reason, must have had some effect on the jury prejudicial to the defendants, under thе circumstances. But cf.
Commonwealth ex rel. Spencer v. Ashe,
The defendants testified to acts of the proseсutor in the tap room which they interpreted as homosexual advances. They said that he threatened to “get even” with them for repelling him. In rebuttal the Commonwealth offered evidence of good moral character of the prosecutor, in the testimony of a witness who was acquainted with his general reputation. Admission оf this testimony over defendants’ objection is one of the questions of law raised by appellants. Since these cases must be retried Ave will state our views as to the admissibility of testimony of this class.
Ordinarily in the prosecution of dеfendants on criminal charges, evidence of good reputation of third persons is inadmissible. It is our view however that the circumstances here give sanction to evidence of the prosecutor’s good reputаtion under an exception to the rule. The aspersions, unanswered, would have besmirched the
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charaсter of the prosecutor and this is reason enough for the admission of evidence to rebut the charges. Sеe 20 Am. Jur., Evidence, §§304, 324; 16 C. J. 586, §1130; 22 C. J. S. Criminal Law, 1083, §680. A similar exception to the general rule was recognized in
Commonwealth v.
Prophet,
Judgments reversed with venire facias de novo.