
    Zene Patterson v. The State.
    (On Rehearing.)
    1. Slander — Indictment.—See the opinion in extenso for allegations in an indictment held sufficient to charge the offense of slander under article 645, Penal Code.
    3. Same — Evidence.—In a prosecution for slander by imputing a want of chastity to a female, the defendant may prove in justification, 1. That the _particular imputation which he has made against the female is true. 2. That her general reputation for chastity at the time the slander was uttered by him was bad. But the defendant cannot be permitted to prove any other acts or conduct imputing a want of chastity, except those specifically embraced in the imputation made by him. See the opinion in extenso for an elaborate discussion of the question.
    Appeal from the County Court of Gonzales. Tried below before the Hon. J. S. Conway, County Judge.
    The indictment charged the slander of Catherine Eugenia Smith, an unmarried female, hy imputing to her a want of chastity. The two opinions rendered in this case disclose the nature of the case. The punishment assessed by the verdict of guilty was a fine of five hundred dollars.
    The charging part of the indictment is set out in the opinion on the motion for rehearing. Conforming to the direction of the court in the original opinion, the substance of the defendant’s bill of exceptions is here incorporated.
    Bill of exception recites, 1st: That defendant called the witness Burch, who stated that at a party at Mrs. Patterson’s house over three years ago, he had been in the dining room, and on coming out he saw Miss Kate Smith and Mr. Patterson lying on a bed together in a little side room, and he spoke to them and said: " Jim Patterson.’’ Here the witness was stopped by the prosecution, and objection was made that the defendant could not be allowed to prove any acts going to show a want of chastity on the part of Miss Smith except with the defendant himself or Joseph Perkins (the specific imputations), and that defendant must be confined to testimony rebutting the circumstances set out in the indictment, or to Miss Smith’s general reputation for chastity; which objection was sustained. 2d. Defendant asked witness Webber if he had ever had any conversation with Miss Smith about her relations with defendant; if so, when and where, and what she said;—which was excluded upon the State’s objection. that the declarations of Miss Smith could not be heard in evidence, she not being a party to the case. 3d. Defendant asked the witness Webber if he had ever had a conversation with Miss Smith about the witness having but one testicle; if so, when and where. 4th. If the witness Webber liad ever conversed with Miss Smith when they had talked about witness building a house for witness and Miss Smith, just big enough for one to lie on top of the other; which questions were excluded on the State’s objection that Miss Smith’s declarations were not evidence: for the defendant. 5th. Question to James Patterson same as that in 2d ground, and excluded for same reasons. 0th. Defendant then asked the witness to state all he knew of acts of Miss Smith with parties other than defendant, showing her want of chastity; which was-excluded on the grounds set out in exceptions 1 and 4. Defendant’s counsel then stated to the court that he desired to show by this witness that he, the witness, had an indecent conversation with Miss Smith, and that, a few days afterwards, defendant repeated this conversation to the witness,— this to show the relations between defendant and Miss Smith; which proof the court rejected. 8th. Same as 6th ground, but the question was put to other witnesses. 9th. Several witnesses having stated in general terms that they had heard Miss Smith’s reputation for chastity talked of by different persons on different occasions, but that they could not state her general reputation, not having heard it generally discussed. The defense asked what her reputation for chastity was among those by whom they heard it spoken of. Excluded on the ground' that the evidence offered did not come within the definition of general reputation. 10th. Defendant asked the witnesses if they knew Miss Smith’s reputation for chastity among the young men in the neighborhood where she lived, and if so to state it. Excluded for reason assigned in exception Ho. 9. 11th. Whether in a conversatioh with the. witness, Scott Perkins said anything to the witness about referring him to Joseph Perkins for information concerning the chastity of Miss Smith; and, 12th, to state what was said, if anything, about Miss Smith’s chastity by Scott Perkins, in a conversation between witness, Scott Perkins, and defendant, were questions ruled out as hearsay. 18. The State asked a witness if he kne^ Miss Smith’s general reputation for chastity, and, if yea, to state it. The defendant objected that the court had •excluded all of defendant’s proof in reference to her reputation, and' to any particular acts showing her want of chastity, and that the testimony was not necessary to justice nor in rebuttal to any proof admitted for the defendant; which objection was overruled.
    Milton Vaudérgriff testified for the State that about September 15, 1879, he and Scott Perkins, in search of work rode to Dowell’s ranche, where they found the defendant at work. While there Scott Perkins asked whether, if a man should get a negro woman with child, would he have to support the offspring. The defendant replied that he would, that he had a case of that kind himself, and had been looking up the question. He said that he had been having intercourse with Miss Kate Smith for about two years, that she was pregnant, and was going to lay the baby on the witness. That Miss Kate had told him that she went to Dr. Green to get a tooth pulled, and that he had pulled at it three times, failing to get it out, and then told her to go to a dentist who would tell her what was the matter with her. The defendant said that he had employed Dr. Green to take the whole case, and that Dr. Green had given him some medicine in a phial about as long as'one’s finger, for which he charged him forty dollars; that he had put Joe Perkins in there but that Joe had gone back on him, and he supposed Joe’s wife had found it out. The defendant stated that on one occasion Miss Kate Smith had crawled through a window to him when he was too sick to do anything. About two weeks after this the defendant told the witness that Miss Kate Smith was all right,—■ that nothing was the matter with her.
    Cross-examined the witness stated that the main conversation was carried on by the defendant and Scott Perkins, and that he, the witness, had but little to say more than “d—n it ” and such expressions. When the defendant told him that Miss Kate Smith was going to lay the baby on him, the witness, he merely replied: “ That’s too d—d thin.” The witness had never seen Miss Smith scuffling with men, nor putting her arms around them. About this time James and Jeff Patterson came up and nothing more was said about the matter
    Scott Perkins testified for the State that he was present at the conversation referred to by Vandergriff, and heard the defendant say that he had been having connection with Miss Kate for about two years, and that Joe Perkins had been having such connection also. The defendant said that Miss Kate had gone to Dr. Green two- or three times to get a tooth pulled, and the doctor could not pull it; that he had employed Dr. Green in the case, and had bought a phial of medicine from Dr. Green for which he paid him twenty-five dollars.
    On cross-examination the witness stated that the defendant spoke of “ Miss Kate,” and did not'call her Miss Kate Smith at any time. He cautioned the witness and Vandergriff to say nothing about it, as it would be the cause of Miss Kate Smith’s brother killing him or being killed by him. Vandergriff was the first to tell what defendant said. ’ ,
    Warren Clark, for the defendant, testified that he saw the defendant sitting in a ball room with his arm around Miss Smith. Miss Smith hugged the witness once, giving him a good tight squeeze. This witness on cross-examination stated that he had never heard Miss Smith called unchaste. The defendant and she were very intimate at the time, and the witness thought that the defendant was courting her.
    Jeff Patterson testified for the defense that, about two> years before the trial, in a ball room, he saw the defendant with his hand upon Miss Smith’s leg, at the-thigh, palm down, and Miss Smith had her hand on the back of defendant’s hand. Witness is a brother to defendant.
    William Patterson, another brother, testified that about two years previous he saw the defendant and Miss Smith sitting in a hall room, with their arms around each other. At another time he saw the defendant’s arm around Miss-Smith. This was while they were riding from church. The witness and his sister were riding ahead of them, when he looked hacked twice and saw them riding along, the defendant with his arm around her. The Patterson family and Miss Smith were very intimate.
    Morgan Coltram was offered by the defense hut his evidence was excluded. In answer to a question asked by the State, he testified that he knew Miss Smith’s general reputation for chastity and that it was good, though she was understood to be very rude.
    In rebuttal the State called Dr. Green, who testified ' that he had never attempted an abortion on Miss Smith or any one else, and had never sold any medicine for that purpose to any One.
    Miss Kate Smith testified, for the State, that her name was Catherine Eugenia Smith, that she was an unmarried female and -would be eighteen .years old in May. That the defendant nor no other man had ever had hands on her person, unless it may have been at play-parties, which were common in the neighborhood, two or three-years before.
    It will he observed that the rulings in this case are those enunciated in the opinion on the rehearing.
    
      
      Miller & Sayers, for the appellant:
    During the trial the defendant offered a great deal of evidence which was ruled out by the court upon what we think a wrong construction of the statute. The statute makes the offense to consist in orally or otherwise imputing a want of chastity to a female, and afterwards makes the following-provision for defendants, viz.: “The defendant may in .justification show the truth of the imputation, and the general reputation for chastity of the female alleged to have been slandered may be inquired into;” Penal Code, art. 646.
    The court construed this section to mean that the de- ; fendant was confined in his defense to proving the general reputation for chastity of the “injured female,” or to evidence showing the truth of the particular words laid as slanderous in the indictment. Under this ruling the defendant has set out "in his bill of- exceptions some six pages of evidence excluded, which, if admitted, would Unquestionably have shown that the imputation of a want of chastity towards the injured female was not groundless.
    The words “want of chastity” have not been construed by our court, but in Yew York the words in their statute's of seduction “ of previous chaste character ” have been construed to mean that the female must be actually pure in conduct and principles. (8 Barbour, 603.) In Andre v. State, 5 Iowa R. 389, the court says (in construing the same words), that proof showing that a woman had been guilty of exposure of her person in the presence of men, that she indulged in the use of obscene and vulgar language, and took improper liberties with persons of the other sex, is not evidence tending io prove unchaste character, but such acts of themselves constitute a want of chastity. But the proof we offered went much further than this. The evidence offered by the defendant and ruled out would, if the witnesses are believed, convince any unprejudiced mind that the “imputation ” of want of chastity as to this female was true in the worst sense of these words.
    The clause of the statute authorizing the defendant to show “the truth of the imputation,” can not refer to anything else than the “imputation of a want of chastity,” which is the gravamen of the offense; and if so, then, we apprehend, that “a want of chastity ” may as well he shown by acts of criminal intimacy, or circumstances tending to show such intimacy, with any person whatsoever. It is the pure and chaste woman that comes within the intended protection of the law, and not the lewd and the unchaste. Ballard v. Lambert, 40 Ala. 204; Snow v. Wicher, 9 Iredell, 236; 34 Vt. 532; 20 N. Y. 561; Anthon’s Nisi Prius R. 252.
    The second section of this statute gives to the defendant two different classes of defenses; one is to prove actual want of chastity in the female, and the other her general reputation. A woman may be chaste and pure, and her reputation for chastity may be bad; and, on the other hand, her reputation for chastity may be good, and yet she may be utterly impure and unchaste (18 Iowa R. 372); and if the defendant can successfully show the one or the other of them, he must be acquitted. In this case it will be seen that the defendant offered evidence to prove each branch of the defense, and it was excluded by the court.
    
      H. Chilton, Assistant Attorney General, for the State.
    
      Fly & Davidson, also for the State:
    Defendant’s fourth assignment of errors presents his exceptions to the ruling of the court upon the admission of testimony.
    First. He excepts» to the action of the court in ruling-out his questions purporting to elicit testimony of acts of unchastity on the part of Miss Smith, the female alleged to have been slandered.
    
      In answer to this objection, we hold:
    First. Defendant’s' questions only tended to elicit testimony of acts of indiscretion on the part of Miss Smith, in order to infer a want of chastity, without questioning-it directly upon facts showing want of chastity. Hence, we-hold, if special acts of unchastity with others than defendant were admissible, the questions asked were inadmissible, because the answers would have been irrelevant.
    Second. Special acts of unchastity other than such as would prove the truth of the imputation made by defendant would be inadmissible; i. e., he was confined to the truth of his assertion in justification and of general character for chastity; and here we submit that at common law the defendant could not prove the truth of the slanderous charge except in mitigation of damages in a civil .suit; nor could he justify slander. Nor could he do so in those States in which the truth is admissible by statute, either in every case or in particular classes of cases, where the sole end is to gratify a spirit of detraction, or-to bring the subject of it in contempt and disgrace, justify or excuse the publication; and in such cases an indictment, may be sustained whether the allegation be true or false. (Whart. Am. Cr. L. 3d ed. pp. 851, 852; 2 Greenl. Ev. 3d ed. §§ 419, 420, 423, 424.)
    “When the defendant attempts to justify by proving the truth, the justification must be as broad as the charge. The verification of part will not be enough.” (Wh. Am. Cr. L. 3d ed. p. 852.) The statute authorizes the defendant to justify by proving the truth of the imputation. What imputation % Of course, the one alleged, to wit: “The want of chastity in this that,” etc., etc. This is the charge which he attempts to prove true. “The justification must be as broad as the charge. The verification of part will not be enough.” The evidence ruled out did not tend to prove any part, much less the whole of the imputation.
    
      “Under the Massachusetts statute the defendant cannot show, short of proving the truth, that the information upon which he acted came from so creditable a source, and under such circumstances as to leave no doubt upon his mind of its truth.” Whar. Am. Cr. L. 3d ed. pp. 852, 853; Com. v. Snelling, 15 Pick. 337; Thacker’s C. C. 318.
    In civil actions for damages arising from libel and slander, under the common law, the general character of the plaintiff could be proved in mitigation of damages under a plea of justification; but neither particular nor general reports could be proved. (2 Greenl. 3d ed. note 1, pp. 404-408, inclusive.) As to particular report: Wallcott v. Hall, 6 Mass. 518. As to general report: 1 Pick. p. 1; 3 Pick. 378. Hence we hold that particular or general reports of acts of unchastity would not avail this defendant. He must be confined to a full verification of his own words.
    In trials for rape the defendant is allowed to prove acts of intercourse between himself and the alleged ravished party, for the purpose of negativing want of consent on her part; but he cannot prove illicit intercourse with any one else. 40 Texas, 484; 1 Ct. App. 33, 187, 346.
    We hold, that for stronger reasons the rule should apply in this case where the reason for the exception fails. To prove the truth of the imputation, it would be necessary to produce such evidence as would convict the injured party of the crime of which defendant has charged her. (2 Greenl. §426, notes 1 and 2.)
    His charge was adultery, and inferentially, abortion or infanticide. Would the testimony sought to be introduced have tended to prove either of these charges % Certainly not; but it would, on such an issue, have been rejected as irrelevant.
    Defendant could not trace his right to introduce special instances to the common law (2 Greenl. 3d ed, note 1, pp. 404-408, inclusive), nor to the statute. (Rev. Stats. art. 79, Penal Code, arts. 645 and 646.) Nor can he introduce general reports or particular reports at common law (2 Greenl. note 1, pp. 404-406, inclusive, 3d ed.), nor under the statute. Then how or by what authority does he seek to introduce this kind of would-be testimony ? We cannot conceive.
    Under our statute defendant is allowed to prove the general reputation of the female in question, or to prove the truth of the imputation, in justification. This is an innovation upon the common law. We assert and believe he will be held strictly to the defense given him under the statute, and not allowed to make a case for himself, when the State would not have an opportunity to reply by evidence to these special instances, because not informed by the statute nor by the defenses set up.
    We draw this distinction between our criminal statute and the common law rule authorizing civil suits for damages: that testimony of character that would be admissible in a civil action would not be admissible in a criminal action, because- one affects private persons in their relations to each other, and the other affects public morals, and the whole community in its sovereign capacity, dealing with an individual member; and we think the rule in such cases should be more strictly construed and rigidly adhered to in this than in the former case. This is not an action of Miss Smith v. Zene Patterson, but State of Texas v. Zene Patterson, in which the State claims the penalty of her violated law and insulted dignity.
    ■ In this connection the attention of the court is called to this further proposition:
    To charge a particular manner in which the want of chastity is imputed, and to allow (in accordance with defendant’s idea) the defendant to prove any other act than the one he has charged, would be to place the character of the most spotless and virtuous woman in the State at the mercy of' any unprincipled scoundrel who might choose to steep his soul in perjury, and swear .away the dearest and most valued attribute and right of woman,— her pure, untarnished reputation. Hence we think public policy demands a different construction of the law, especially as the law, we conceive, is directly in the face of the defendant on all these questions.
    The court will note with what ingenuity learned counsel for defendant has shaped the questions upon this point, and also that he does not ask for a single act of unchastity with defendant, or any one else, but attempts to establish general reputation by some general or particular reports, or by conversations that he imagines existed or occurred, and so propounds his questions as to elicit such evidence as this, or to prove some acts of indiscretion upon' the part of the slandered female. We submit that the questions asked are not legal in form or in substance, and the answers would not be proper or legal, whether answered by general report, by'particular report, by acts of indiscretion, or by acts of unchastity, other than as charged by the defendant.
    Defendant complains that he was not permitted to ask Yanfiergriff what Scott Perkins said Jo. Perkins had said about the chastity of Miss Smith.
    In this we think the court did not err, because:
    1. The question is subject to all the objections urged to the class of questions already discussed.
    2. It would be the veriest hearsay.
    3. It was not the best evidence. As Scott Perkins was upon the stand (if, by any stretch of fancy, it could be conceived that the testimony was admissible under any view of the case), he would have'been the proper witness to prove it by.
    4. It could not inure to defendant’s benefit to prove that another had slandered the female in question.
    Defendant complains that he was not allowed to prove what a few young men, or what three or four persons, had said about Miss Kate Smith. This testimony was obnoxious to all the rules of evidence cited in reference to general or particular reports under the second division of this argument. The statute allows him to prove general reputation; but this is not done by proving what a few young men, or what three or four persons, might have said, and that not relating to her general reputation for chastity.
    Defendant’s fifth proposition under this assignment is, that the court should have allowed him to prove Miss Smith’s declarations. In reply, we submit that Miss Smith is not a party to this action, and hence her declarations would be purely hearsay, and inadmissible, unless they would come under some exception to the rule excluding hearsay evidence. They do not come under any of these exceptions, and hence are inadmissible. The question was irrelevant to the issue, not showing general reputation for unchastity, nor proving the truth of the charge. The rejection of this testimony could work no hardship to defendant, because Miss Smith was upon the stand as a witness in the case. He could have asked her in regard to these declarations, by way of laying the predicate for her impeachment. This he did not do. Having waived the only legal manner in which he could have introduced the declarations, he will hardly be heard to complain that he was not allowed to introduce them in a manner unwarranted by law.
    Defendant’s sixth proposition under this head is that the State, in examination of defendant’s witness, Col-train, was allowed to prove the general good character of Miss Smith. The statute does not prohibit the State proving general character. It provides that her general reputation may be inquired into. We apprehend that may be done either by the State or the defendant.
    The foregoing brings us to the conclusion there is no error in the court’s ruling, as set out in bill of exceptions to the admission of testimony, because:
    ' 1. Defendant did not offer to prove the truth of the ■charge.
    2. He offered no testimony to prove the general character of slandered female for chastity to be bad. The law presumes it good. The State proved it good.
    3. Ho mitigation of charge was offered in testimony. Defendant admits its truth. He fails to justify by proving’ the imputation true. The law presumes it false. The ■State proved it false.
    4. The testimony was not admissible under the rules of ■evidence, as shown by above argument..
   Hurt, J.

Patterson was tried and convicted of slander under articles 645 and 646 of the Criminal Code, from which judgment of conviction he appeals to this court. Upon the trial he proposed to prove acts, conduct and conversations done, performed and had by and with the "prosecutrix, Smith, tending to show the want of chastity .generally. The State objected upon the grounds, 1st, that, as the assignment of slander was made upon illicit intercourse between the prosecutrix and defendant and ■one Joseph Perkins, the proof must be confined to these charges. 2d. That as the State was • the party to this prosecution, and not the prosecutrix, her declarations ■could not bind the State, and were therefore inadmissible.

In order to determine whether the court below acted properly in sustaining these objections, it is necessary that the constituent elements of the offense charged be precisely understood. Of what, then, is this offense composed? Article 645, Penal Code, provides: “If any person shall, orally or otherwise, falsely or maliciously, or falsely and wantonly, impute to any female in this •State, married or unmarried, a want of chastity, he shall be deemed guilty of slander.” Stripped of the intents,, the offense consists in “imputing the want of chastity to a female.” This may be done in a general way, or by charging her with certain acts of unchastity. The-charge, however, of the want of chastity, whether imputed generally or by alleging particular acts with certain, individuals, is one of the essential necessary elements of the offense.

Under article 646 it is not required of the State to show the imputation false, but the defendant may justify by showing it to be true. It follows, therefore, that if unchaste there is no offense. If, then, the defendant has the right to sho*w the imputation to be true, and not false, is he confined to her general reputation as the only means by which to make such proof ? We think not. A general unfavorable reputation as regards this want of character, in a great many instances, has for a basis,— foundation,—■ one act of illicit intercourse. Not only so, but suspicious circumstances, wfithout guilt, not unfrequently become the corner stone upon which the envious- and abandoned build for the innocent a reputation withering and blasting, which cannot be reclaimed by the most chaste and innocent life.

If, then, this general reputation springs from, and has a basis or foundation in one act, or in suspicious circumstances, by what principle of reason can these acts and circumstances be held inadmissible ? If the foundation of the edifice be removed, can the building stand ? No conclusion can ever' rise higher and be more certain than the facts from which it is drawn or made.

We are, therefore, of the opinion that the court below erred in sustaining the objections to the evidence proposed by the defendant. We are of the opinion that the-defendant was entitled to prove each and every fact proposed by him, as shown by the. bills of exceptions.

The objections to the sufficiency of the indictment are-not well taken. (The Reporters will give the indictment and bills of exceptions.)

The charge of the court, upon another trial, will be conformed to the principles- above enunciated. For the error of the court, referred to above, the judgment will be reversed and the cause remanded for a new trial.

[After the rendition of the foregoing opinion, at the Galveston term, 1881, the counsel for the State filed a motion for a rehearing, and the motion was taken under advisement. At the Austin term, -1882, the motion was sustained and the judgment of conviction affirmed upon the grounds set out in the following opinion.— Reporters.]

Willson, J. At the January term, 1881, of this court at Galveston the judgment rendered in this case by the-court below was reversed by this court, and the cause was remanded for a new trial. The assistant attorney general filed a motion for a rehearing, and the case again comes before this court upon that motion.

The prosecution is for the offense of slander, under art. 645 of the Penal Code. The indictment charges that the defendant did wilfully, wantonly, maliciously and falsely impute, orally, to one Catherine Eugenie Smith, then and there an unmarried female in this State, a want of chastity, in this, namely, he the said Zene Patterson then and there stated to one Milton Vandegriff and one Scott Perkins, that he knew she the said Catherine Eugenie Smith was pregnant, and that he the said ZenePatterson and one Joseph Perkins had been having carnal intercourse with her the said Catherine Eugenie Smith for the space of about two years.” The indictment we hold to be good, and the evidence fully establishes the uttering of the words charged, and that they were uttered wantonly, if not maliciously.

The principal question in the case, and the only one noticed by this court in its previous opinion, and the only one which we now propose to discuss, is as to the admissibility of certain testimony offered by the defendant. He proposed to prove certain acts and conduct on the part of the woman Smith, tending to show a want of chastity. He made no effort in a direct way to prove the truth of the imputation he had made against her, but his proposition was to prove indirectly and circumstantially that what he had said about her was trac, by proving other acts and conduct by her, which would lead to the conclusion that she would likely be guilty of the particular ■acts he had charged against her. This evidence when offered was objected to by the State, and was rejected, and the question now is, did the court below err in refusing to admit such testimony ?

The statute under which this prosecution is instituted is one of recent date. It creates an offense which, until the adoption of our revised Penal Code, was unknown in the criminal law of this State. It is an offense also which was unknown to the common law, and we are not aware of any State which has a penal statute precisely similar to this one. Hence we have been unable to find any adjudicated case bearing directly upon the question" before us, and we must therefore treat the subject as an original one, and determine it without the aid of precedents.

In order to arrive at a correct solution of the question, it is proper and necessary that we should consider and understand- the purpose and intent of this statute. What existing evil did it seek to remedy ? What were the defects in the former law regarding this evil, which this statute proposes to correct ? The existing evil was that the reputation of females for chastity was the mere plaything of wanton, malicious, worthless persons,— that the chaste character of. the purest and best women in the land was frequently assailed and destroyed by. the foul tongue of some degraded slanderer, who was as worthless pecuniarily as in principle. What protection did the law afford against this evil? A civil action for damages; — nothing more. If it were an assault upon the woman’s person, the law denounced that as a crime, and punished it as such; but if the assault was upon her reputation for chastity, which was dearer to her than even life, then the only remedy offered was the farcical one of a civil action for damages. We say farcical, because in ninety-nine cases in a hundred the vile slanderer would be bankrupt and beyond the' reach of the law. Experience had taught that this civil remedy was wholly inadequate and ineffectual to suppress the evil, and that legislation was needed to protect the character of our chaste women from the foul breath of the irresponsible slanderer. It was to afford this protection that this statute was enacted, and in construing it we must give to it such meaning as will be most consistent with its language and with its object and spirit.

It says to the slanderer, if you falsely and maliciously, or falsely and wantonly, impute a want of chastity to a female, you have committed an offense, and shall be punished therefor, unless you prove the truth of the imputation, or that the.woman’s general reputation for chastity is bad. The law, in its mercy, permits him to justify his slander by proving the truth of it, or by proving that the woman’s general reputation for chastity is bad. (Penal Code, art. 646.) It graciously permits him to do this, notwithstanding his imputation against her may have been made by him maliciously. But, while it grants to him the privilege of proving the truth of the imputation he has made, does it also extend to him the privilege of proving, ad libitum, other and different acts and conduct of the female tending to prove, or even proving, that she is an unchaste woman ? If such is to be the rule would it not destroy the intended efficacy of this statute ? Would it not make this law, instead of a protection to the reputation of chaste women, as it is intended to be, a trap and a snare in which might be caught and ruthlessly crushed the reputations of the best and purest women in our State ?

The case now before us is a good illustration of what, would be the practical working of such a rule. Here the woman is accused of certain specific acts and conduct imputing a want of chastity. She and the State are fully prepared to prove the falsity of this imputation. She is also fully prepared to prove that her general reputation for chastity is good, and the State is also prepared for this issue. But the defendant, without pretending to prove the truth of the imputation he has made, or without showing her general reputation for chastity to be bad, undertakes to avoid the real issue in-the case, and to prove that this woman had been guilty of other acts and conduct than those he had imputed to her, and which tended to show that she was not a chaste woman. How could it be reasonably expected that the State or the slandered woman could be prepared to disprove these collateral and unexpected issues ? They might be as false as-the tongue of perjury could invent, and yet, being brought forward unexpectedly, the State would in all probability be unable to make their falsehood apparent at the trial. What would be the result? The defendant would be acquitted, and the woman’s reputation would be sacrificed — judicially murdered.

It has been well said by Justice Campbell in the case of Proctor v. Houghtaling, 37 Michigan, 41, that, “ It would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue in the cause. She could have no means of defense against malicious fabrications, which are by no means .unusual in such .cases, and the reputation of the purest persons could easily he ruined or damaged by allowing free scope to such testimony. As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses, at all times, but it would be impossible to be prepared for all the particular slanders which perjured and malicious witnesses might invent.” The opinion from ydiich we have quoted was rendered in a civil action for slander, but the reasoning, we think, is peculiarly applicable to the question before us.

Again, to further illustrate our idea of such testimony, suppose the case of a woman who has lived in a community several years, and during that time has conducted herself reputably,—who by her conduct has proved herself to be a kind, virtuous, Christian woman. She is the loving wife of a happy husband — the affectionate mother of innocent children. She moves in the best society, is respected and beloved by all, and is an ornament and a blessing to the community. The vile tongue of the slanderer imputes to her some specific act or conduct showing that she is not a virtuous woman. The slanderer is indicted. The utter falsity of the imputation he has made is overwhelmingly proved, and that it was made by him wantonly and maliciously. More than this, he admits .perliaps that he has maliciously lied about this woman, but he sneeringly says, “I can prove that, five or ten years ago, when this woman was a gay, giddy girl, she committed acts of indiscretion, or worse than that, if you please, that she gave away her virtue. Yes,’ I propose, in order to shield myself from this prosecution, to go back over the life of this woman, and prove every indiscretion of which she has ever been guilty. I propose to disregard her present good character, her prudent, virtuous, Christian life for .years past, and to show that, however chaste she may now be, she was unchaste in former times. She will be wholly unprepared for these issues, and I will overwhelm and min her, and destroy the fair name which she has established in the world.”

If the law were to grant to the slanderer such license, what woman, however pure and unblemished bright be her lif e and reputation, would not shudder at the thought of seeking protection under this statute ? To prosecute the slanderer would be but to expose herself to the poisoned darts of malice and perjury, and while she might enter into the prosecution with an unblemished reputation, she would most likely come out of it with her character blackened, and the finger of scorn pointing at her as an object to be loathed and avoided.

We cannot agree to give an interpretation to this statute which in our opinion would not only render it inoperative for good, but would make of it a dangerous trap and delusion for the woman who might have the temerity to appeal to it for protection. While we have no authorities directly in point, to cite in support of this view of the law, we have found, ample authority in analogous cases, and which we think applicable to the question before us. We refer to the following: Proctor v. Houghtaling, 37 Mich. 41; Wilson v. Apple, 3 Ohio, 270; Duval v. Davey, 32 Ohio State R. 604; Mathews v. Davis, 4 Bibb (Ky.), 173; Andrews v. Van Duzer, 11 Johns. (N. Y.) 38; Ormsby v. Douglass, 2 Abbott’s Pr. R. (N. Y.) 407; Stiles v. Comstock, 9 Howard’s Pr. R. (N. Y.) 48.

We therefore conclude that in a prosecution under this statute, the defendant in justification may prove, 1. That the particular imputation which he has made against the female is true. 2. That her general reputation for chastity at the time the slander was uttered by him was bad. But that he cannot be permitted to prove any other acts or conduct imputing a want of chastity, except those specifically embraced in the imputation made by him.

The action of the-court below in refusing the testimony • offered by defendant, and the charge of the court also, being in accordance with the views we have expressed, the motion for a rehearing is granted, and the judgment of conviction is affirmed.

Rehearing granted and judgment affirmed.  