
    ELDER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.)
    1. Libel and Slander (§ 155) — Evidence— Preparation to Commit Crime.
    On prosecution for slandering defendant’s wife by charging misconduct with S., circumstances tending to show preparation on the part of S. for the commission of the offense are admissible as tending to show the commission of such offense.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. 155.]
    2. Libel and Slander (§ 155) — Criminal Prosecution — Evidence.
    Where accused was charged with slandering his wife in charging her with misconduct with S., and accused sought to use the flight of S. as an incriminating circumstance, the court properly permitted him to testify to a statement made to him by the wife as furnishing a reason for his flight consistent with their innocence.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.]
    3. Witnesses (§ 277) — Cross-Examination —Scope.
    Where the state claimed that defendant had slandered his wife to manufacture evidence to obtain a divorce, that he might marry M., the court properly permitted the state to cross-examine defendant with reference to his attentions to M.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.]
    4. Criminal Law (§§ 419, 420) — Hearsay.
    Where accused was charged with slandering his wife, and several young men testified to facts damaging to the wife’s reputation for chastity, though denying any ill will toward her, evidence that a boy whose name was unknown to the witness had told witness that the boys around T. where the parties resided had it in for the wife, because she would not permit them to hang around the telephone office, was hearsay, and inadmissible.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    5. Criminal Law (§ 789) — Instruction — Reasonable Doubt.
    Where, in a prosecution for slandering defendant’s wife by charging her with improper intimacy with S., defendant did not deny speaking the language charged, but claimed it was true, and there was evidence justifying a reasonable man in believing that his wife had been unduly intimate with S., it was error to refuse-to charge that, before accused could be convicted, the jury must find beyond a reasonable doubt that the statements were false, and that they were maliciously and wantonly made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from Taylor County Court; Thomas A. Bledsoe, Judge.
    J. F. Elder was convicted of slander and he appeals.
    Reversed and remanded.
    Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

In this case appellant was prosecuted and convicted of slandering his wife, in that he charged her with a lack of chastity, and his punishment assessed at a fine of $300 and’ 30 days’ imprisonment .in the county jail.

The facts are of that nature that we do not think any good purpose could be accomplished by stating them; they in some respects being rather obscene. If appellant wrongfully made the charges alleged, he would richly deserve the punishment fixed by the jury. Appellant did not deny using the language alleged, but hinged his defense on the proposition that what he stated to Mr. Browning was true.

The record discloses that Charley Skill-em, whom appellant charged with having sexual intercourse with his wife, was attending the telephone at night; the wife of appellant sleeping in an adjoining room. On the night in question appellant pretended to leave the town on a night train, and shortly thereafter he says he placed a ladder against the walls of the building in which the telephone office was situated, and, climbing up the ladder, he claims he saw Skillern and his wife in a very compromising position. Skillern fled, leaving his hat, tie, and some other wearing apparel.. This Skillern explains in a way entirely consistent with his and Mrs. Elder’s innocence, but while Skil-lern was testifying, and while appellant was cross-examining him in regard thereto, appellant propounded to Skillern the question: “If he (Skillern) had not that night purchased from Lee Rutherford some condoms?” The -state objected to the witness being permitted or required to answer this question, which objection was sustained, and appellant by proper bill shows he reserved an exception to the ruling of the court. Appellant offered to testify and' introduce other testimony that on the night in question Skillern did purchase condoms from Rutherford, but, on objection being made by the state, the court refused to permit him to introduce such testimony. As we have stated, this case was tried wholly on the issue of whether or not the statement was true, and as the allegation was that appellant had stated “he had caught Skillern in bed with his (appellant’s) wife,” and, exhibiting Skillern’s hat and collar, said, “This is what I got out of that f — k—g scrape last night,” we are of the opinion that this testimony about the purchase of condoms that night should have been admitted. It would be a circumstance tending to show preparation on Skillern’s part to have intercourse with some person, and was a legitimate circumstance to have been proven under the facts in this case.

The court did not err in permitting Skillern to testify to a statement made to him by appellant’s wife, as this furnished a reason for his flight, consistent with his and her innocence, and, as appellant was seeking to use this flight as an incriminating circumstance, it was proper to permit it to be explained.

The state’s theory was that the allegations were wholly untrue and slanderous, and that it was an effort to manufacture testimony upon which appellant could obtain a divorce from his wife, that he might marry a Mrs. Moore. Under such circumstances, we do not think the court erred in permitting witness to state, and defendant to be cross-examined, as to his attentions to Mrs. Moore just prior to this occasion, for, if true, it might furnish such incentive as contended for by the state.

The court over the objection of defendant permitted the state to prove by the witness Browning “that a boy, whose name he had forgotten, told him (Browning) that the boys around Trent had it in for Mrs. Elder because she would not permit them to hang around the telephone office.” This was hearsay and inadmissible, and under the circumstances of the ease peculiarly harmful. Several young men had testified to facts damaging to Mrs. Elder’s reputation for chastity, and whose testimony would tend strongly to support the contention of appellant. These young men denied entertaining any ill will toward Mrs. Elder, and no testimony was introduced showing that they did entertain such feelings, unless it be the hearsay statement testified to by Mr. Browning. Mr. Browning was unable to give the name of his informant, and he did not claim that the person making the statement individuated or had any reference to the young men who testified for appellant in this case, and yet this hearsay statement was introduced to affect their testimony and render it less credible.

The appellant requested the court to charge the jury: “You are instructed that, if you should find from the evidence that the defendant made the statements that he is alleged to have made to the witness Browning, you are instructed that, before you could convict the defendant, it would be necessary for you to further find beyond a reasonable doubt that said statements were false, and that same were wantonly or maliciously made by the defendant.” As before stated, that appellant used the language alleged was not a contested issue, and under the peculiar facts of this case we. think this charge should have been given. It correctly called the attention of the jury to the material issues in the case — whether or not the allegation was true, and whether or not it was wantonly or maliciously made. Whether the statement was false or true, appellant, according to the state’s testimony, saw his wife and Skillern in a position that would arouse suspicion in almost any man. Skillern testified: “I saw Mr. Elder at the depot, and I also saw Tom McLeod and Charlie Bishop. I went back up to the telephone office from the station and pulled off my hat, collar, and tie and shoes, and was preparing to go to bed. Mrs. Elder had been in the telephone office prior to this time, and she had been sitting on the opposite side of the bed to me. That is, she was sitting on the side next to the door that opens into the other room, and I was sitting on the side of the bed toward the switchboard. Mr. Elder came up a ladder to the north window of the telephone office and stuck his head in at the window, ánd says, ‘God damn you, I have caught you.’ I says to him: ‘That is not the way to come in. Get down, and come around to the door if you want to come it.’ He then went down the ladder, and I started to the door to let him in, and Mrs. Elder said to me, ‘You had better get out of the telephone office because Frank is drinking, and he might hurt you.’ Mr. Elder had gone down the ladder at- this time, and hadn’t yet come up the steps to the door. I did get out of the telephone office by jumping down on the awning from the back window of the room where Mrs. Elder’s things were, and I ran away.” If while laboring under a false impression, if such be the fact, appellant made the remarks alleged, they were highly improper, yet in such state of case the issue should be clearly presented as to whether it was maliciously and wantonly done. Stayton v. State, 46 Tex. Cr. R. 207. 78 S. W. 1071, 108 Am. St. Rep. 988; Tippens v. State, 43 S. W. 1001.

We do not deem it necessary to discuss the other questions presented in the motion for new trial, but, on account of the above errors, the judgment is reversed, and the cause is remanded.  