subject as an original one, and determine it without the aid of precedents.

In order to arrive at a correct solution of the question, it is proper and necessary that we should consider and understand the purpose and intent of this statute. What existing evil did it seek to remedy? What were the defects in the former law regarding this evil, which this statute proposes to correct? The existing evil was that the reputation · of females for chastity was the mere plaything of wanton, malicious, worthless persons, that the chaste character of the purest and best women in the land was frequently assailed and destroyed by the foul tongue of some degraded slanderer, who was as worthless pecuniarly as in principle. What protection did the law afford against this evil? A civil action for damages-nothing more. If it were an assault upon the woman's person, the law denounced that as a crime, and punished it as such; but if the assault was upon her reputation for chastity, which was dearer to her than even life, then the only remedy offered was the farcical one of a civil action for damages. We say farcical, because in ninety-nine cases in a hundred the vile slanderer would be bankrupt and beyond the reach of the law. Experience had taught that this civil remedy was wholly inadequate and ineffectual to suppress the evil, and that legislation was needed to protect the character of our chaste women from the foul breath of the irresponsible slanderer. It was to afford this protection that this statute was enacted, and in construing it we must give to it such meaning as will be most consistent with its language and with its object and spirit.

It says to the slanderer, if you falsely and maliciously, or falsely and wantonly impute a want of chastity to a female, you have committed an offense and shall be punished therefor, unless you prove the truth of the imputation, or that the woman's general reputation for chastity is bad. The law, in its mercy, permits him to justify his slander by proving the truth of it, or by proving that the woman's general reputation for chastity is bad.1 It graciously permits him to do this, notwithstanding his imputation against her may have been made by him maliciously. But, while it grants to him the privilege of proving the truth of the imputation he has made, does it also extend to him the privilege of proving, ad libitum, other and different acts and conduct of the female tending to prove, or even proving, that she is an unchaste woman? If such is to be the rule would it not destroy the intended efficacy of the statute? Would it not make this law, instead of a protection to the reputation of chaste women, as it is intended to be, a trap and a snare in which might be caught and ruthlessly crushed the reputations of the best and purest women in our State!

1 Penal Code, art. 646.

The case now before us is a good illustration of what would be the practical working of such a rule. Here the woman is accused of certain specific acts and conduct imputing a want of chastity. She and the State are fully prepared to prove the falsity of this imputation. She is also fully prepared to prove that her general reputation for chastity is good, and the State is also prepared for this issue. But the defendant, without pretending to prove the truth of the imputation he has made, or without showing her general reputation for chastity to be bad, undertakes to avoid the real issue in the case, and to prove that this woman had been guilty of other acts and conduct than those he had imputed to her, and which tended to show that she was not a chaste woman. How could it be reasonably expected that the State or the slandered woman could be prepared to disprove these collateral and unexpected issues? They might be as false as the tongue of perjury could invent, and yet, being brought forward unexpectedly, the State would in all probability be unable to make their falsehood apparent at the trial. What would be the result? The defendant would be acquitted, and the woman's reputation would be sacrificed — judicially murdered.

It has been well said by Justice Campbell in the case of Proctor v. Houghtaling,1 that, "it would be very dangerous to allow issues to be made on the trial concerning specific acts of the plaintiff, or specific rumors, or charges against her not going to the direct issue in the cause. She could have no means of defence against malicious fabrications, which are by no means unusual in such cases, and the reputation of the purest persons could easily be ruined or damaged by allowing free scope to such testimony. As has often been remarked, the general reputation of any one may be expected to be within the knowledge of attainable witnesses at all times, but it would be impossible to be prepared for all the particular slanders which perjured or malicious persons might invent." The opinion from which we have quoted was rendered in a civil action for slander, but the reasoning we think is peculiarly applicable to the question before us.

Again, to further illustrate our idea of such testimony, suppose the case of a woman who has lived in a community several years and during that time has conducted herself reputably, who, by her conduct, has proved herself to be a kind, virtuous, Christian woman. She is the loving wife of a happy husband the affectionate mother of innocent children. She moves in the best society, is respected and beloved by all, and is an ornament and a blessing to the community. The vile tongue of the slanderer imputes to her some specific act or conduct showing that she is not a virtuous woman. The slanderer is indicted.

The utter falsity of the imputation he has made is overwhelmingly proved, and that it was made by him wantonly and maliciously. More than this, he admits, perhaps, that he has maliciously lied about this woman, but he sneeringly says: "I can prove that, five or ten years ago, when this woman was a gay, giddy girl, she committed acts of indiscretion, or worse than that, if you please, that she gave away her virtue. Yes, I propose, in order to shield myself from this prosecution, to go back over the life of this woman, and prove every indiscretion of which she has ever been guilty. I propose to disregard her present good character, her prudent, virtuous, Christian life for years past, and to show that, however chaste she may now be, she was unchaste in former times. She will be wholly unprepared for these issues, and I will overwhelm and ruin her, and destroy the fair name which she has established in the world."

If the law were to grant to the slanderer such license, what woman, however pure and unblemished might be her life and reputation, would not shudder at the thought of seeking protection under this statute? To prosecute the slanderer would be but to expose herself to the poisoned darts of malice and perjury, and while she might enter into the prosecution with an unblemished reputation, she would most likely come out of it with her character blackened, and the finger of scorn pointing at her as an object to be loathed and avoided.

We can not agree to give any interpretation to this statute which in our opinion would not only render it inoperative for good, but would make of it a dangerous trap and delusion for the woman who might have the temerity to appeal to it for protection. While we have no authorities directly in point, to cite in support of this view of the law, we have found ample authority in analogous cases, and which we think applicable to the question before us. We refer to the following: Proctor v. Houghtaling, Wilson v. Apple,2 Duval v. Davey,3 Mathews v. Davis, Andrews v. Van Duzer,5 Ormsby v. Douglass, Stiles v. Comstock.7

4

1

6

We, therefore, conclude that in a prosecution under this statute, the defendant in justification may prove: 1. That the particular imputation which he has made against the female is true. 2. That her general reputation for chastity at the time the slander was uttered by him was bad. But that he can not be permitted to prove any other acts or conduct imputing a want of chastity, except those specifically embraced in the imputation made by him.

1 37 Mich. 41.

2 3 Ohio, 270.

3 32 Ohio St. 604.

44 Bibb 173.

11 Johns. 38.

2 Abb. Pr. 407.

79 How. Pr. (N. Y.) 48.

The action of the court below in refusing the testimony offered by defendant, and the charge of the court also, being in accordance with the views we have expressed, the motion for a rehearing is granted, and the judgment of the conviction is affirmed.

Rehearing granted and judgment affirmed.

SLANDER PROOF OF CHARGE.

CONLEE v. STATE.

[14 Tex. (App.) 222.]

In the Court of Appeals of Texas, 1883.

Slander-Essential Allegations.—The slanderous words alleged in the indictment were that the defendant had had carnal intercourse with Miss F. B., and that the character of Miss F. B. was bad. The proof was that the appellant said to the witness that she, Miss F. B., "would have been a nice girl if he, defendant, had not done what he had done to her; and if he, the witness, did not believe it, to meet the defendant at the gin house that night, and he, defendant, would prove it." Held, that the allegation was not proved.

APPEAL from the County Court of Brazos. Hon. D. C. BARMORE, County Judge.

Tried below before the

The opinion states the nature of the case. The punishment assessed by a verdict of guilty was a fine of five hundred dollars.

Gus Pitts was the first witness introduced by the State. He testified that he had known the defendant for about ten or fifteen months. Witness was acquainted with Miss Florence Bullock, and was addressing her at the time of this alleged offense. On or about the eighteenth day of November, 1882, he saw the defendant, and had a conversation with him in front of Hall's drug store, in Bryan, Brazos County, Texas. In the course of that conversation, the defendant stated to the witness that "Florence Bullock would have been a nice girl if I had not done what I have done; and if you don't believe what I say and will meet me to-night at the gin house, I will prove it to you." Lew Smith was near at the time, but did not hear the conversation. Miss Bullock lived in the Steep Hollow neighborhood, and the defendant lived near there.

Miss Florence Bullock testified, for the State, that she was an unmarried female; that she knew the defendant, and had a conversation with him on or about the first of November, 1882. The defendant asked the witness if it would do him any good to visit the witness. The wit

ness replied that it would not. Thereupon the defendant said that he would destroy the happiness of the witness and make Mr. Pitts quit writing to her. The witness replied that he could not do so without lying, and he answered that he would do it at all hazards; that he was capable of telling a thousand lies in a minute. The witness then told him that she had a father and brothers to rely upon for protection and he replied he did not fear the whole Bullock family.

Cross-examined, the witness stated that she became angry and indignant, whereupon the defendant said that he was joking, from which the witness inferred that he meant that he was joking about destroying her peace of mind, and about not being afraid of the Bullock family. The witness then permitted him to see her home, which she would not have done had she not believed his protestations that he was joking about the matter.

Miss Sallie Cook, who was next introduced by the State, testified that in the year 1882, prior to the 18th day of November, the defendant told her that he intended to have revenge out of the Bullock family. The witness understood this threat to have been uttered because the Bullocks objected to the defendant as a visitor to Miss Florence.

Henderson & Henderson, for the appellant. J. H. Burts, Assistant Attorney-General, for the State.

WILLSON, J. An information charged the defendant as follows: That"one John Conlee did orally, falsely and maliciously impute to Miss Florence Bullock a want of chastity, in this, that the said John Conlee did then and there orally, falsely and maliciously say to one Gus Pitts, that he, the said John Conlee, had had carnal knowledge of her, the said Miss Florence Bullock, and that she, the said Miss Florence Bullock, was of bad character."

To support this charge the State proved by Gus Pitts the language used by defendant, which was as follows: "She would have been a nice girl if he (defendant) had not done what he had done to her; and if I (meaning witness) did not believe it, meet him at the gin house that night and he would prove it." The witness stated that the above language was the only statement made or words used by the defendant to him about Miss Florence Bullock; that the defendant did not state to him that he, defendant, had had carnal knowledge of Miss Bullock. Defendant objected to this evidence because it was not in substance the slander charged in the information, and his objections being overruled he excepted, and insists that the conviction should be set aside because the evidence does not prove the charge as alleged in the information.

It has been held by this court that in a prosecution for this offense the information or indictment must set forth substantially the language,