
    McDONALD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Libel and Slander (§ 152*) — Proof—Variance.
    There was a -fatal variance in a prosecution for slander in falsely imputing unchastity, where the information alleged that accused stated that the woman “was a woman of ill fame, and that eight different parties had intercourse with her,” while the competent proof only showed that accused had upbraided the woman for her ill feeling because he had told her of bad reports concerning her.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419 — 424, 426, 427; Dec. Dig. § 152.*] ■
    2. Libel and Slander (§ 154*) — Burden oe Proof.
    In a prosecution for slander in imputing want of chastity to a female, it is not necessary to prove all of the language charged in the information, but only the imputation of unehas-tity.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 428, 429; Dec. Dig. § 154.*]
    3. Libel and Slander (§ 148*) — Criminal Responsibility — Privileged Communication.
    A statement by accused to a husband, made on the latter’s request as to the cause of the trouble between accused and the husband’s wife, that accused had heard that the wife had had intercourse with other men, was privileged as a confidential communication.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. § 148.*]
    4. Libel and Slander (§ 155*) — Criminal Responsibility — Prosecution — Admission oe Evidence.
    Under Pen. Code 1911, art. 1180, requiring that language imputing unchastity to a female be false and malicious to constitute the offense of slander, and article 1181, permitting accused to show the truth of the imputation and the female’s general reputation for chastity, evidence was admissible that the woman had told accused, before his interview with her husband in which accused told him that she was unchaste, that she had had intercourse with others than her husband.
    . [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]
    5. Libel and Slander (§ 155*) — Criminal Responsibility — Admission oe Evidence.
    In a prosecution for slander in imputing unchastity to a female, evidence of abusive statements made by accused concerning the female was admissible to show ill will and malice.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]
    6. Criminal Law (§§ 763, 764*) — Trial—Instructions — Weight oe Evidence.
    An instruction, in a prosecution for slander in imputing unchastity to a female, that the statement of a small number of persons as to reputation is insufficient to make a general reputation, especially if the small number testifying are influenced by the same persons, or move in the same circles, was erroneous as on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.*]
    7. Libel and Slander (§ 156*) — Truth oe Statement— Sufficiency of Evidence.
    In a prosecution for slander in imputing unchastity to a female, accused need not establish beyond a reasonable doubt that her reputation for chastity was bad; it being sufficient if the jury believe’ from the evidence that it is bad.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 156.*]
    8. Libel and Slander (§ 156*) — Truth of Statement — Sufficiency- of Evidence.
    In a prosecution for slander in imputing' unchastity to a female, accused need not establish the truth of the alleged slanderous statement ; it being sufficient as a defense that the jury believe its truth, or have a reasonable doubt of its truth.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 156.*]
    Appeal from Matagorda County Court; W. S. Holman, Judge.
    J. R. McDonald was convicted of falsely and maliciously imputing a want of chastity to a female, and appeals.
    Reversed and remanded.
    Gordon Lawson, of Palacios, and Linn & Austin, of Bay City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST,' P. J.

Upon the complaint of A. T. Whyman, the county attorney filed an information, in both of which — the complaint and information — it was charged that appellant falsely, maliciqusly, and wantonly did impute to Neva E. Whyman a want of chastity, in that in the presence of A. T. Whyman he said of Mrs. Whyman “that she was a woman of ill fame, and that eight different parties had intercourse with her.” The jury convicted appellant, assessing his punishment at a fine of $500 and 90 days in jail.

We will not give in full the evidence, nor specially discuss it, but will state only so much of it as is necessary to show the questions raised and decided.

Neva E. Whyman was the wife of said complainant, A. T. Whyman.- He was a mail carrier in July, 1913, and on some occasions, it seems, his wife carried the mail in his place. On July 30th appellant wrote to Mrs. Whyman, stating, in effect, that he had given her 50 cents to mail a parcels post package which cost only 7 cents, and he demanded the return by her of the difference, 43 cents. In the letter he also said that it looked like a small matter to ask for the return of the 43 cents, but that it was not near as little as the way she had acted toward him, and as she had no favors for him, he had none for her; that when he heard bad reports about her, like a friend, he told her, but by doing so he gained her everlasting enmity, and the last two times he was at her house she took particular pains to show it. He advised her not to attempt to carry the mail again, and if she did, she would meet with serious opposition, which in all probability would cause her husband to lose his job. “You know the reason why.” Mr. Whyman saw this letter before starting out on his mail route on July 31st. When he reached appellant’s place he saw appellant off some 30 or 40 yards working in his yard. He called him out to him, and asked him what was the trouble between him and his wife, and why he had written said letter. The appellant, according to said Whyman’s evidence, stated to him he hated to tell him, but that he considered it right to do so, and thereupon he told said Whyman that his wife, Neva E., “had had intercourse with eight different parties.” Whyman stated that appellant did not then tell him that his wife was a woman of ill fame.

Appellant’s version of the matter is substantially this: That on July 31, 1913, when Mr. Whyman stopped at appellant’s mail box, he was at work in his yard, and Why-man called to him to come out to the buggy, saying that he wished to talk to him. That he went out in answer to his call, and Why-man asked him what was the trouble between him and his wife. “I replied that I did not wish to tell him what the trouble was, but that there was trouble enough, and I told him that it was her place to tell him, to which Mr. Whyman replied that he wanted me to tell him what it was. I replied to him that I did not want to tell him what the trouble was, but that if he wanted to know, I would tell him. Mr. Whyman replied that, he thought it was my place to inform him fully in regard to this trouble. I then told him that I would only tell him what was true, and that if he believed that his wife was true to him, he was the worst deceived man in Matagorda county. I told him that I-had heard that his wife was having sexual intercourse with divers persons, and that one J. R. Wagoner had told me that eight different men had of their own accord told, him that they had had intercourse with her, to which Mr. Whyman replied that he did not believe that any man had had intercourse with her.” That he then told Why-man that he himself had had intercourse with her. That Whyman stated that it was awful mean for him to do it, and he told Whyman it was just as mean of her as it was of him. That Whyman then asked him how he had managed it, and he went into the details of the several acts of intercourse he had with Whyman’s wife, and how he had managed it, and he detailed what had occurred and where.

Appellant introduced 11 different witnesses, who testified that they each knew the general reputation of Mrs. Whyman in the neighborhood in which she lived for chastity and virtue, and that her reputation was bad. The state introduced a like number of witnesses, who testified that each knew her general reputation in the particular mentioned, and that it was good.

Appellant introduced some corroborating testimony which tended to support his testimony, showing that he had sexual intercourse with Mrs. Whyman, and testimony by others tending to show a state of facts that showed she was not a chaste woman. The state introduced witnesses who flatly contradicted appellant in some of his testimony, but no one disputed what occurred between appellant and Mr. Whyman when appellant told Whyman about his wife.

Appellant makes the point that there is a fatal variance between the allegation and the proof. The allegation in the 'complaint and information is clearly sufficient, without any innuendo, to show slander under our statute. But the proof is clear and positive that appellant did not use to Mr. Whyman the first part of the language charged, to wit, “that she (Mrs. Whyman) was a woman of ill fame.” We seriously doubt if the other language charged, to wit, “that eight different parties had intercourse with her,” is sufficient to charge an offense under our statute without an innuendo of what is meant thereby. It is true that it is well settled by our decisions that it is not necessary to prove the whole of the -language charged, but that it is necessary that what of it is proven shall show the imputation of the want of chastity upon the female. Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, and cases there cited. Under this decision we believe there is a fatal variance between-the allegation and the proof.

Again appellant makes the point that the communication between appellant and Mr. Whyman, under the circumstances as shown by the evidence, was a confidential communication, and that alleged could not be made the basis of a charge against appellant under our statute. This contention of appellant, in our opinion, is well founded. Davis v. State, 22 S. W. 979; Hix v. State, 20 S. W. 550; Rosenbaum v. Rosche, 46 Tex. Civ. App. 239, 101 S. W. 1165. We aye not discussing that part of his communication to Whyman that he himself had had sexual intercourse with Mrs. Whyman, if false.

Appellant also complains that the court erred in refusing to permit him to testify in effect that Mrs. Whyman had told appellant, prior to the said interview between him and Mr. Whyman, that she had had sexual intercourse with others than her husband. Under our statute it is necessary to show that the language, imputing a want of chastity to a female, was falsely and maliciously, or falsely and wantonly, made by the accused. P. C. art. 1180. Also that in such prosecution 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. P. C. art. 1181. This being the case, the testimony of appellant on this point was admissible. McMahan v. State, 13 Tex. App. 222; Van Dusen v. State, 34 Tex. Cr. R. 456, 30 S. W. 1074; Humbard v. State, 21 Tex. App. 209, 17 S. W. 126.

In our opinion the other testimony, objected to by appellant, of other statements soon afterwards, made by him concerning Mrs. Whyman, and on some occasions cursing and abusing her, was all admissible for a like purpose of showing his ill will towards her, and his wanton and malicious statements, if so, about her.

The court in his charge told the jury, among other things: “The statement of a small number of persons as to reputation is insufficient to make a general reputation, especially if the small number testifying are influenced by the same persons, or if they move in the same business or social circles.” Appellant justly complains of this charge of the court. It is not the law, and should not have been given. It is a clear comment upon the weight of the testimony.

The court also charged as .follows: “If on inquiry as to general reputation of the female, the evidence satisfies you beyond a reasonable doubt that her reputation for chastity is bad in the community in which she lives, then you should acquit the defendant, or if you believe that the defendant has established the truth of the alleged statement, then and in that event you will also acquit the defendant.” He also complains of this part of the court’s charge. It is not necessary under the law that appellant should establish beyond a reasonable doubt the reputation of the female for chastity is bad, but it is sufficient if the jury believe from the evidence that her reputation is bad.

Also as a defense it is not essential that the defendant shall establish the truth of the alleged statement, but merely that if the jury believe the truth of it, it is sufficient. The charge on this subject in effect should be that, if the jury believe that the female’s reputation for chastity is bad, etc., or they have a reasonable doubt about it, appellant should be acquitted; or, if the jury believe that the alleged statement is true, or they have a reasonable doubt of its truth, they should acquit appellant.

It is unnecessary to discuss any of the other questions raised in the ease. None of them present any reversible error.

For the errors above pointed out, the judgment is reversed and the cause remanded.  