Haley v. State , 63 Ala. 89 ( 1879 )

BRIOEELL, O. J.

A plea in abatement, because of the misnomer of the defendant, regularly precedes a demurrer, or a plea to the matter of the indictment; and is waived, if it is regularly pleaded, 'by the subsequent interposition of a demurrer, or other pleading, which, ■ in effect, admits that the defendant is the person named or charged. It is not" material to inquire, whether the rulings of the court on the plea in abatement, finally adjudging it insufficient, were correct or not. The court could have stricken the plea from the files, because the defendant had demurred to the indictment, and did not ask a hearing on the plea, until the demurrer was overruled; and if there was error in its rulings, there was no injury to the defendant.

2. By the common law, words impeaching the chastity of a female, not imputing an indictable offense, were not, unless followed by special damage, actionable slander. — Berry v. Carter, 4 St. & Port. 384. They were rendered per se actionable, by a statute enacted in 1830 (Clay’s Dig. 538, § 1), which is substantially re-enacted in the Code. — Code of 1876, § 2971. A statute enacted in 1871, now forming section 4107 of the Code of 1876, converts the speaking of words, “ of and concerning any female, falsely and maliciously imputing to her a want of chastity,” into an indictable offense; and on this statute the present indictment is founded. A form of indictmentis prescribed, authorizing the setting out of the substance of the words spoken; which the pleader has pursued, and, according to repeated decisions of this court, the indictment must be pronounced sufficient in its statement of the offense.

3. Averring the name of the defendant, under an alias dictus, was proper, if the pleader had doubts which of the names averred was that by which the defendant was usually designated.

4. In civil actions for slander, the general rule is, that the words must be proved substantially as averred, or, a,t least, so much of them as may be necessary to constitute the slander. The rule is not satisfied by proof of slanderous words of equivalent import. — Commons v. Walters, 1 Port. 377; Williams v. Bryant, 4 Ala. 44; Teague v. Williams, 7 Ala. 844; Easley v. Moss, 9 Ala. 266; Scott v. McKinnish, 15 Ala. 662. The rule having its origin in the rule of the common law, requiring the slander to be averred, not according to its purport, or effect, or substance, but the words spoken (Townshend on Slander and Libel, § 329 ; Cooke on Defamation, 81), can' have? but a limited application to indictments founded on the statute, which are sufficient, if the substance of the words spoken is averred. And whenever the words proved in substance correspond to the averment of the indictment, and of themselves impeach the chastity of a female, without a departure from the statute, and nullifying the form of indictment authorized, evidence of them can not be excluded. The indictment avers, that the defendant, by speaking of the woman named words importing that he had with her sexual intercourse, imputed to her a want of chastity. The evidence offered was of the exact words spoken; and if these words imputed that the defendant, and not some other man, had illicit intercourse with the woman named, the averment was satisfied. There was not, and the statutory form does not intend there shall be, an averment of the precise words spoken, but simply the substance; and the substance is, according to the averment in this indictment, the imputation of a want of chastity, by his sexual intercourse with the female; and there could not have been a material variance, so long as the words proved were limited to his illicit intercourse with'her, whatever may have been the form of expression he adopted in publishing his own and her shame.

4. The court and jury must construe the words, if they are unambiguous, and are of ordinary acceptation and signification. But slander is often uttered in some cant phrasej or in some low expression, not having an ordinary acceptation and signification; and if the slanderer chooses to adopt these, there can be no good reason for excluding proof of their meaning by a witness who knows it. In no other way could the slander be proved. — Robinson v. Drummond, 24 Ala. 174.

5. In the instructions given and refused, we do not find any error. But, in admitting evidence of the defendant’s declarations in reference to other women, though uttered in the same conversation in which the offensive words were spoken of the female named in the indictment, there was error. It is not permissible to prove the utterance of slanders in respect to other females, which may, of themselves,, constitute indictable offenses, to fix or aggravate the guilt of the defendant in reference to the specific accusation made against him. These declarations were separable from the slanderous words on which the indictment was founded, and proof of them could serve no other purpose than-to prejudice the defendant. The error of their admission Compels a reversal of the judgment. , :

Reversed and remanded.