141 Ala. 96 | Ala. | 1904
The testimony as to utterances made by defendant prior to the one prosecuted for, imputing to the prosecutrix adulterous conduct, was relevant as tending to prove the like utterances with which he was charged in the complaint were, if made in fact, malicious. See Riley v. State, 132 Ala. 13; 3 Greenleaf on Evidence, § 168; Wharton’s Criminal Law, § 1651; Russell on Crimes (6th ed.) 643. In the motion to exclude this testimony Hiere was no ground appropriate to raise the question referred to in defendant’s brief of whether the admissibility of the testimony ivas effected by the doctrine under which the state .may be held to an election of, offenses. . .
Tlie charge requested by defendant was properly refused. If the utterance ascribed to him by the complaint was made falsely and maliciously as averred in the complaint — a matter which under the evidence was for the jury to determine — it ivas not privileged or rendered inoffensive to the statute (Code, § 5065) by reason of its having been made in a trial of the prosecutrix had under rules and regulations of a church. Communications made in the course of ecclesiastical discipline are not of the absolutely privileged classes and are not privileged when not made bona fide and without malice. — Wharton’s Criminal Law, § 1641.
Judgment affirmed.