39 S.W. 118 | Tex. Crim. App. | 1897
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 *184
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,
Reversed and Remanded.