The appellant was indicted for slander by the grand jury of Perry county. After a change of venue to Pulaski county, he was tried and convicted and sentenced to three years in the State penitentiary. His appeal raises certain questions of law, which we shall state and detеrmine.
The indictment, in substance, charges that appellant slandered one Pearl Jones by falsely uttering and publishing about her words which, in their common acceptation, amounted to charge the said Pearl Jones with having committed fornication and adultery with the sons of appellant.
On the trial of the case, Pearl Jones was introduced as a witness for the State, and testified that she had never had sexual intercourse with either of defendant’s sons, or any one else. .On cross examination, she was asked if she had not had sexual intercourse with Joe Darr, аnd concerning other circumstances having no connection with the charge in the indictment. To contradict the prosecutrix, and to show that she was a woman of lax morals, the appellant was allowed to introduce proof tending to show that she had committed forniсation with Joe Darr, and had been guilty of other criminating acts. The court, in effect, held that testimony concerning these extrinsic facts could only be introduced for the purpose of contradicting and impeaching the witness Pearl Jones, and that the jury could only consider them for the purpose of testing the accuracy of her statements, and to determine the weight that should be given her testimony; that such acts, if proven, did not go in justification of the offense. If there was any error in this ruling of the court, it was in favor of the defendant. Pearl Jones was the prosecuting witness, but she could not be impeached by proof tending to show that she had been guilty of acts of fornication or adultery with men other than' the sons of defendant. Much less could such collateral acts of adultery or fornication be considered as a justification of thе crime with which defendant was charged.
Sec. 2902, Mansfield’s Digest, expressly provides that a witness shall not be impeached “by evidence of’ particular wrongful acts, except that it may be shown by the examination of a witness or record of a judgment that he has been convictеd of a felony.” This portion of our statute providing that a witness should not be impeached by evidence of particular acts was only declaratory of the law as it existed at the time. In the case of Pleasant v. State,
The learned judge of the circuit court properly allowed such collateral acts of fornication to be proved in this case for the reason that the prosecuting attorney, in his examination in chief, asked Pearl Jones if shе ever had “sexual intercourse with any man.” The general rule is that when a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question ; but this limitation only applies to answers on the cross-examination. It dоes not affect answers to the examination in chiéf. Wharton’s Crim. Ev. (8 Ed.) sec. 484; State v. Sargent,
The court refused, on motion of the attorney for thе defendant, to compel Pearl Jones, the prosecutrix, to submit to an examination of her person. We think that this ruling of the court was correct. The chaste and virtuous woman would naturally shrink from such an examination, as well as those who were guilty and feared detection, and wе hold that the refusal of the prosecutrix to submit to the examination of her own accord raised no presumption against her chastity. Even if we ■conceded that such an examination would have helped to determine whether or not Pearl Jones had been guilty of illicit sexual intercourse, it would have thrown no light on the question whether or not she had been guilty of adultery with the sons of defendant, which was the question at issue. Many of the courts hold that in prosecutions of this kind the prosecutrix cannot be compelled to answer the question whether she has beеn guilty of collateral acts of adultery or fornication, for the reason that the question concerns irrelevant matters, and the answer may tend to disgrace the witness. There is much stronger reason why she should be privileged from an examination which might tend to disgrace her, would throw nо direct light on the question at issue, and would shock the modesty of any innocent woman.
In its charge, the court stated to the jury that, if the defendant relied as a defense upon the truth of the words used by him, the burden of proof was upon him “to show, by evidence fairly preponderating, that such words were true.” The defendant was accused of slandering Pearl Jones by falsely uttering and publishing about her certain words which amounted, in their common acceptation, to accuse her of having been guilty of fornication with the sons of defendant. The indictment alleged that thesе words were false. Sec. 1813, Mansfield’s Digest, under which this indictment was found, is as follows : “If any person shall falsely use, utter or publish words which, in their common acceptation, shall amount to charge any person with having been guilty of fornication or adultery, such words, so spoken, shall be deemеd slander, and shall be actionable and indictable as such.’’ The gravamen of the offense under this statute is the falsely using, uttering or publishing the words which constitute the slander. The allegation in the indictment that the words were false is a material one, and necessary not only to be averred but to be proved to make out the crime.
Mr. Wharton, in his work on Criminal Evidence (8 ed. sec. 720), discusses the question as to when the burden is on the defendant to prove his defense, as follows : “When a defense, in itself purely extrinsic and independent, is set up, all the allegations of the indictment bеing admitted, then, as we have seen, it is necessary that the defense should be sustained by a preponderance of proof. The principal defenses of this class that have come before the courts are: (1) License, or authority from the State; (2) Autrefois acquit or сonvict\ and (3) Insanity, when the object is to obtain a verdict of lunacy. On the other hand, when this defense traverses any essential allegation of the indictment, then, when the whole evidence is in, the jury, as we have seen, are to be told that to convict it is necessary that such allegаtions should be established beyond1 reasonable doubt.” In the case at bar, the defense that the language uttered by defendant was true traversed the essential allegation of the indictment that the words so uttered were false, and under the rule laid down by Mr. Wharton, which is sustained by the authoritiеs, it. must be established beyond a reasonable doubt before defendant can lawfully be convicted.
In this connection the court also instructed the jury as follows: “If the defendant denies using the words charged in the indictment, and relies upon that as a, defense, and the State proves bеyond a reasonable doubt, that he did use or utter them as charged, and that they,, in their common acceptation, amounted to charge Pearl Jones with fornication, and she denies the truth of this-charge, in the absence of any other proof, this would be sufficient to justify a cоnviction, the presumption being in favor of the prosecuting witness.”
One defect in this instruction is that it, in effect,, tells the jury that if - Pearl Jones denies that she was-guilty of fornication, then, in the absence of other proof,, the jury should take the statement as true. The question of what weight to give to the testimony of a witness in a criminal prosecution, and whether they will believe her or not, is always one for the jury to determine.. We think the court erred, also, in telling the jury that-the presumption was in favor of the chastity of the-prosecuting witness. While it is true, generally speaking, that the law prеsumes in favor of the chastity of females, as it does of the good character, honesty, and innocence of all persons, until there is proof to the contrary, yet these presumptions cannot be used to supply the place of evidence against a defendant in a criminal prosecution. “The presumption of virtue of one citizen cannot work the condemnation of another,” in whose favor, when charged with crime, the law raises the presumption of innocence until he is proven guilty. In the case of West v. State,
It is also urged by counsel for appellant that it was error to give this instruction, for the reason that it instructs the jury concerning a phase of the case that was not before them. The defendant testified in his own behalf, and admitted that he had uttered and publishеd substantially the words alleged in the indictment. It was, therefore, unnecessary to instruct the jury on a view of the case that would have been presented had he denied having used such words. The defendant set up in effect only two defenses: (1) That the words uttered were true ; (2) That he had spokеn them in good faith, and under circumstances that made them privileged. The court might therefore have confined its charge to the questions of law arising on the phases of the case presented by these defenses. But while it is well for a trial court to avoid, as far as possible, circumlocution a'nd lengthy charges, still, it is, at times, necessary to refer to questions of law not strictly pertaining to the questions before the jury, in order to distinguish and explain the rules of law by which the jury are to be guided. Such matters are left, to a considerable extent, within the discretion of the triаl court, and this court will not reverse because the trial court gives an instruction on a phase of the case not presented by the evidence, unless it is apparent that it may have misled the jury to the prejudice of the appellant. We do not see that any harm could have resulted from the giving of this instruction, had the law been correctly stated.
It is insisted that other rulings of the trial court were erroneous, but we have discovered no substantial error except as indicated above. For those errors the judgment of the circuit court is reversed, and cause remanded for a new trial.