This is an indictment under the statute, section 1113 of The Code, for slandering an innocent woman.
The defendant and the prosecutrix, L. C. Misenheimer, whom it was alleged the defendant had slandered, had been married, but troubles having arisen between them, the defendant left the prosecutrix (his wife), and went to the State of Texas, where he remained some three years, when he returned. Upon his return, he stated that while he was in Texas he procured a divorce in the courts of that State from the prosecutrix. The prosecutrix testified that while defendant was absent, papers were served on her in a case of the defendant against her in an action of divorce in Texas. The State also offered in evidence a properly certified "judgment" of a court in Texas, granting a divorce of defendant from the prosecutrix.
Upon the view we take of the case presented by the record, it does not turn upon the ruling of the court on the admission of evidence. But as the same questions may be presented upon another trial, and as we have considered them, it seems to be proper to say that in our opinion the admissions of the defendant that he had been divorced from the prosecutrix, were competent and admissible as evidence.
It is held in S. v. Melton, 120 N.C. 591, in an indictment for (761) bigamy, that the admissions of the defendant that he had been married to another woman in South Carolina were admissible as evidence for the purpose of showing a former marriage. And we do not see the difference in principle in allowing declarations to show marriage and in allowing declarations to show that a marriage had been dissolved.
But as it seems that only the judgment of the court of Texas was certified, we do not think this was a compliance with the act of Congress (Code, Vol. 2, p. 732) which requires that the whole record shall be certified. For this reason the judgment offered in evidence was incompetent and should have been excluded.
The defendant and the prosecutrix were members of the same church, and the church took up the matter, passed resolutions requiring the defendant to appear before the church and show cause why he abandoned his wife, and appointed a committee to notify defendant of the action the church had taken in the matter. This committee waited on the defendant, notified him of the action the church had taken, and a church trial ensued. The statements of defendant to this committee, and the statement he made at the church trial were properly excluded by the judge on the trial below, or where they were not entirely excluded, the jury were properly instructed that there was no presumption of malice *Page 522 against the defendant, and that to convict the defendant on these statements the State must establish malice beyond a reasonable doubt.
But the court, after properly charging the jury as to the other evidence, charged them as follows in a separate paragraph: "That as to the statement of Allmond, if the prosecutrix was an innocent (762) woman the law presumed that the statement was malicious and the burden was put upon the defendant to show to the satisfaction of the jury that it was not malicious. " In this paragraph there is error. The defendant alleged that the prosecutrix had told him what he told Allmond, and that he only repeated to Allmond what the prosecutrix had told him; that he told Allmond that prosecutrix had told him what he told Allmond. This was not contradicted by Allmond, but he testified that what defendant told him was in a friendly conversation between them, induced by Allmond; that defendant exhibited no malice, but sorrow only.
This in our opinion did not imply malice, unless it was shown that the prosecutrix did not tell the defendant what she told Allmond she did; and that, in the absence of the finding of that fact — that the prosecutrix had not told the defendant what he told Allmond she did — there was no presumption of malice, and the burden was not thrown on the defendant to rebut such presumption.
If the court in this paragraph of the charge had submitted the truth of this statement to the jury, so as to make the paragraph read as follows: "That as to the statement of Allmond, if the prosecutrix was an innocent woman (and she had not told the defendant what the defendant told Allmond she had), the law presumed that the statement was malicious and the burden was put upon the defendant to show to the satisfaction of the jury that it was not malicious," the charge would have been correct.
It was in evidence and admitted that the prosecutrix had had sexual intercourse with the defendant before their marriage (under promise of marriage as she alleges) and that she became the mother of a (763) child about five months after they were married. But her character was proved to be good before and since her marriage, with this exception.
It was contended by the defendant, and the court was asked to charge the jury, that it being shown and admitted that the prosecutrix had had criminal intercourse with the defendant before their marriage, that she was not an innocent woman, under section 1113 of The Code, and that the jury should return a verdict of not guilty. This prayer for instructions was properly refused. S. v. Grigg, 104 N.C. 882.
It must be understood that a man cannot reduce a virtuous woman and then slander her with impunity, and, when indicted for such slander, *Page 523 claim protection against the penalties of the law by pleading her disgrace which he had caused to be brought upon her. The statute would fail to give that protection to innocent women that was intended if this was allowed. There were some other exceptions presented by the record, but they cannot be sustained.
For the error pointed out in the charge of the court below there must be a
New trial.
(764)