63 Ala. 89 | Ala. | 1879
A plea in abatement, because of the misnomer of the defendant, regularly precedes a demurrer, or a plea to the matter of the indictment; and is waived, if it is regularly pleaded, 'by the subsequent interposition of a demurrer, or other pleading, which, ■ in effect, admits that the defendant is the person named or charged. It is not" material to inquire, whether the rulings of the court on the plea in abatement, finally adjudging it insufficient, were correct or not. The court could have stricken the plea from the files, because the defendant had demurred to the indictment, and did not ask a hearing on the plea, until the demurrer was overruled; and if there was error in its rulings, there was no injury to the defendant.
2. By the common law, words impeaching the chastity of a female, not imputing an indictable offense, were not, unless followed by special damage, actionable slander. — Berry v. Carter, 4 St. & Port. 384. They were rendered per se actionable, by a statute enacted in 1830 (Clay’s Dig. 538, § 1), which is substantially re-enacted in the Code. — Code of 1876, § 2971. A statute enacted in 1871, now forming section 4107 of the Code of 1876, converts the speaking of words, “ of and concerning any female, falsely and maliciously imputing to her a want of chastity,” into an indictable offense; and on this statute the present indictment is founded. A form of indictmentis prescribed, authorizing the setting out of the substance of the words spoken; which the pleader has pursued, and, according to repeated decisions of this court, the indictment must be pronounced sufficient in its statement of the offense.
3. Averring the name of the defendant, under an alias dictus, was proper, if the pleader had doubts which of the names averred was that by which the defendant was usually designated.
4. In civil actions for slander, the general rule is, that the words must be proved substantially as averred, or, a,t least,
4. The court and jury must construe the words, if they are unambiguous, and are of ordinary acceptation and signification. But slander is often uttered in some cant phrasej or in some low expression, not having an ordinary acceptation and signification; and if the slanderer chooses to adopt these, there can be no good reason for excluding proof of their meaning by a witness who knows it. In no other way could the slander be proved. — Robinson v. Drummond, 24 Ala. 174.
5. In the instructions given and refused, we do not find any error. But, in admitting evidence of the defendant’s declarations in reference to other women, though uttered in the same conversation in which the offensive words were spoken of the female named in the indictment, there was error. It is not permissible to prove the utterance of slan
Reversed and remanded.