Stayton v. State

78 S.W. 1071 | Tex. Crim. App. | 1904

Appellant was convicted of slander, and his punishment assessed at a fine of $150; hence this appeal.

Appellant insists that the court erred in permitting the State to prove the conversation had by defendant with witness Lamons, to the effect that in January or early in February 1903, defendant came to him in his house and said to witness that he could not keep his cattle any longer; that witness must take them back; that defendant was compelled to leave the country and separate from his wife; that he had scriptural grounds for the separation. This was objected to by appellant because the statement of the witness was not the same as set out in the indictment, and was therefore inadmissible. If this statement was shown to have been made by appellant contemporaneous with the allegation contained in the indictment, or shortly before or after the same was uttered, then there could be no question as to the admissibility of the testimony. This character of testimony would be admissible for the purpose of showing with what intent the slanderous words set out in the indictment may have been uttered. Collins v. State, 44 S.W. Rep., 846; White v. State,39 Tex. Crim. 89. However, the bill shows that this statement was made to Lamons a considerable time after the alleged offense, and just shortly before the indictment was returned; so there may be some doubt as to its admissibility under these conditions. But if its admissibility be conceded, the court should have instructed the jury as to the purpose of its introduction, which was not done, and exception was reserved in the motion for new trial on account of the failure of the court to do this. See Collins v. State, supra.

Appellant contends that the statement he made to Moore, and on which the charge of slander was predicated, was of the character of a privileged communication, and that the same was not slander. In this connection he refers us to Hix v. State, 20 S.W. Rep., 550; Davis v. State, 22 S.W. Rep., 979. These authorities are in point as showing that where it was reported to the father that the party had slandered his daughter, and such party when approached by the father made the statement to him of what he had heard, this was in the nature of a duty and was privileged, and consequently could not be ground of prosecution for slander. In Hix's case, supra, Ormsby v. Douglass, 37 N.Y. 477, is cited. This excerpt is quoted approvingly by the court: "The rule is well settled that a communication which would otherwise be slanderous and actionable is privileged if made in good faith upon a matter involving an interest or duty of the party making it, though such duty be not strictly legal but an imperfect obligation to a person having a corresponding interest or duty." The question here is as to the applicability of said legal principle. Here the facts show that appellant had resolved to leave his wife and approached Moore for the purpose of getting him to take charge of his children. He did not tell Moore of the alleged infidelity of his wife on the first occasion, but on the second day, when he again called on Moore in regard to his children, Moore inquired the reason for wanting to leave his children with him, and why he was leaving the country. And he then told him of the infidelity of his wife; that he had caught her and one Farmer in the act of illicit intercourse as alleged in the indictment. And in that connection witness stated he appeared grieved, and asked him not to say anything about it. Unquestionably appellant owed no legal duty to Moore that would authorize this statement to him. Nor do we believe this case comes within the rule laid down in the two cases above cited.

There the statement was made to the father of the alleged slandered party, in regard to rumors that had reached him in connection with the defendant, and defendant was called on to explain the matter; and in order to justify himself defendant told the father of the slandered party what he had heard. Here Moore had no right to make any such demand of appellant; nor was it necessary that appellant should explain to Moore the reason for leaving his children with him. We accordingly hold that the communication was not privileged under the authorities above cited. As to whether or not the State can maintain a prosecution for slander against the husband for imputing a want of chastity to his wife, so far as we are advised there is no direct decision on the question in this State. Baxter v. State, 34 Tex. Crim. 516, was a case of this character; but the question was not made, and the judgment was reversed on other grounds. At common law one of the spouses could not maintain a civil suit against the other for slander. 18 Am. and Eng. Enc. of Law, p. 1053, subdiv. D, and authorities there cited. However, our statute on the subject is all-embracing, and does not exclude slanders perpetrated by the husband against the wife; and we accordingly hold, that such prosecution can be maintained.

In this case, it will be observed that malice, which is a necessary ingredient of the offense (see art. 750, Penal Code; 18 Am. and Eng. Enc. of Law, p. 998) was proven by very slight testimony. The court gave a charge in accordance with the statute authorizing the jury to convict defendant if they believed the elements of the definitions of malice were proven. He also defined the meaning of the words malice and wanton, as used in the charge. However, he did not give a charge the converse of the proposition. We believe, under the circumstances of this case, he should have given appellant's requested special instruction, to the effect that, unless the jury find from the evidence that the imputation was maliciously and wantonly made, notwithstanding it was shown to be false, they should acquit defendant.

For the errors discussed the judgment is reversed and the cause remanded.

Reversed and remanded.