Appellant was convicted of slander, and his punishment assessed at a fine of $1000 and twelve months' imprisonment in the county jail, and prosecutes this appeal. On the trial the court instructed the jury as follows: "If, on inquiry as to the 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." This charge was excepted to on the part of appellant, and the giving thereof by the court is assigned as error. There is a good deal of evidence in the record touching the reputation of the prosecutrix for chastity, and on this branch of the case the charge of the court not only shifts the burden of proof on the defendant, but requires him to prove a want of chastity beyond a reasonable doubt. The statute on this subject (Art. 751, New Penal Code) authorizes the general reputation for chastity of the female alleged to have been slandered to be inquired into. We do not think the statute authorizing an inquiry into the general reputation of the alleged injured female for chastity was intended to require the jury to believe that the same was bad beyond a reasonable doubt before they could acquit the defendant. This is not the only vice in this charge, as further along, and as a part of the same charge, and evidently connected with it, the jury were instructed to acquit the defendant if they
believed he had established the truth of the alleged statement. The question of reasonable doubt seems to constitute a part of this charge. It precedes it, and in its connection appears to qualify this portion of the charge, and to require of the defendant to prove the truth of the charge beyond a reasonable doubt. As thus construed, this portion of the charge was clearly erroneous. If it be conceded that the charge does not require the defendant to establish the truth of the charge beyond a reasonable doubt, but merely places the burden of proof on the defendant to establish the truth of the charge, then possibly it might be considered a substantive defense, resting within the peculiar knowledge of the defendant, and comes within the rule laid down in Leonard v. State, 7 Tex.Crim. App., 417, and Ake v. State, 6 Tex.Crim. App., 398, shifting the burden of proof upon the defendant as to this matter. However, we do not deem it necessary to decide this question. The issue as to the chastity of the alleged injured female and the truth of the charge were both sharply contested, and a great deal of evidence on both sides was introduced. The charge above quoted in our opinion, was calculated to prejudice the rights of the defendant. We believe that it was competent for the State to introduce statements made at different times by appellant, similar to those alleged in the indictment as made by him about the same time. See, Hanners v. McClelland,74 Iowa 318, 37 N.W. Rep., 389. In our opinion, the court acted correctly in excluding the evidence on the cross-examination of Mrs. Wilson in regard to a certain letter alleged to have been written by her. The letter itself should have been produced and identified, and offered in evidence. It seems that this letter, which is numbered as Exhibit 7 in the record, was offered in evidence, and rejected. Under the circumstances of this case, we believe it should have been admitted. We also believe that the witness, David Braden, qualified himself to testify as to the handwriting of Mrs. Wilson (nee Ludrick), and that the letter identified by him as in her handwriting should have been admitted in evidence for the purpose for which it was offered; that is, as a specimen of her handwriting, for comparison with other letters alleged to have been written by her, and offered in evidence. We also believe the court committed an error when the defendant stated, in answer to a question by the State, that he had no recollection of the matter inquired about, and, on his repeating this answer, in stating, in the presence of the jury, that the witness refused to answer the question asked. We do not think this answer could be construed into a refusal to answer the question asked, but merely as a statement that he did not remember the matter inquired about. Appellant, by his eighth bill of exceptions, raises the question as to the proper conduct of the court in the trial of the case. Said bill of exceptions is as follows: "Be it remembered that on the trial of the above-entitled cause, and during the whole time said cause was being tried, there was a large crowd of persons in the court room, crowded around the jury, the witnesses, the attorneys, and the judge; that the whole of the space inside of the bar
and on the judge's stand was filled with such crowd; that people were crowded up to, on each side of, and behind the jury in the box; that such crowd so continued throughout the trial of the cause; that during the progress of the opening argument for the State said crowd broke into laughter or applause at the severe strictures and condemnations of the defendant and his witnesses by said counsel for the State; that said applause was repeated three several times by said crowd during a period of about fifteen minutes — the last one greater than the others; and no attention was paid to said applause by the court, nor was said crowd in any way reprimanded for its conduct until after the defendant's counsel had called the attention of the court to such conduct after it had been repeated three times, and asked for a bill of exceptions to the court's permitting the same. The court then stated to the crowd that they were in a court of justice, and it was improper for them to indulge in applause of the remarks of counsel, and admonished counsel to refrain from further remarks encouraging such conduct, and distinctly told the jury it was wrong, and to pay no attention to it; but did not inform the crowd that it was a contempt of the court, nor did he warn them that they would be fined, or otherwise held in contempt of court, if such applause was repeated. To which action of the court in permitting such continued and repeated applause, without any reprimand or any attempt to keep order in the court, the defendant then and there excepted, and here and now tenders his bill of exceptions to the same. Be it further remembered that at the conclusion of the argument for the State the said crowd broke into a wild and uproarious applause, cheering, clapping their hands, and one throwing his hat into the air. The court then severely reprimanded said crowd, and told them their conduct was highly improper, was a contempt of the court, and that, if he knew who it was that was indulging in such conduct, he would fine them, and the court then admonished the jury that they were not to consider the applause of the crowd and their demonstrations, and should not permit the same to have any effect upon their returning their verdict, and then remarked to the jury that he knew they were good men, and would not be influenced by such applause and demonstration. And defendant here now tenders his bill to such action of the court in permitting said applause until it was objected to by the counsel for the defendant, in not warning said crowd that, if their conduct was repeated, they would be in contempt of the court, and would be fined for the same, and in not admonishing the jury not to consider the conduct of said crowd, nor be influenced by it, until after the argument had closed; and ask that this bill be allowed. Approved with the qualification that the court saw no one throw his hat, and could not learn who the disturbers were; and, further, the court was not requested to warn the crowd it was wrong to press up near the jury, or the court; and that the judge's stand was large, and only had two men actually in the stand, and they were sitting on low chairs, and were very quiet, behind the court, who was on a high chair." This bill of exceptions shows that the trial was
conducted in the midst of an excited crowd and such demonstrations on the part of the crowd appear to have been permitted by the court, as were calculated to unduly impress and influence the jury who were trying the case. We think it was the duty of the court, at the very threshold, to promptly check this unseemly demonstration, and not allow a repetition of the applause. When the first demonstration happened, the court, not anticipating it, might not have been able to prevent it; but it was within the power of the court to prevent any repetition of such conduct. In this case the bill of exceptions shows that said conduct was repeated without hindrance on the part of the court, until counsel for appellant were compelled to call the court's attention to the matter and take a bill of exceptions. And even after this the audience indulged in still more boisterous applause at the conclusion of the argument of State's counsel. By some effort this could have been prevented. On the first occasion the parties should have been reprimanded aud warned. On the second offense, some of them should have been identified and fined. Such conduct should not be permitted in a court of justice, during the trial of a case, especially of this character, when the minds of the jury are liable to be easily excited and inflamed by such conduct on the part of the audience. For the errors discussed, the judgment of the lower court is reversed and the cause remanded.
Reversed and Remanded.