It is vigorously insisted by the state on motion for rehearing that the offense of slander cannot be committed by the use of defamatory language in writing. "Slander is the general and original word for all kinds of defamation and at an early day in the history of the common law the term applied to both oral and written defamations of character." 36 C. J. 1145. Until the enactment of our present slander statute, the act therein defined as a crime was not punishable unless it fell within the terms of the then existing libel law. Plainly the class intended to be protected by this statute was the female sex, and the evil sought to be remedied was the lack of such protection under the then existing laws. Having undertaken this task, the legislature used language which we think is broad enough to include any act which "orally or otherwise" falsely and maliciously, or falsely and wantonly, imputes to any female a want of chastity. See Art. 1293 P. C. This was legislation designed to protect a special class, and the above construction gives full protection to such class, whereas the construction insisted on by the state falls short of full protection and leaves wholly unexplained the meaning of the broad language "orally or otherwise" used in Art. 1293 P. C., defining slander. Besides there would not seem to be anything unusual in the legislature making the term slander at least as broad as its original common law meaning in its application to the class mentioned.
We further believe that because the slander statute is a special provision, dealing particularly and specifically with acts applying only to one class, it will control the general libel law in effect at the time of its passage in so far as the act made penal in Art. 1293 defining slander may be included within the general terms of the libel law. The legislature carved specially *Page 239 from an existing general statute and must have therefore intended that its special provisions should control such general provisions embodied in Title 16, Chapter I, P. C., dealing with libel. Art. 5, P. C.; 36 Cyc. 1151; State v. Valentine, 198 S.W. 1009; Bank v. Lee, 250 S.W. 315. It therefore follows necessarily that appellant's alleged criminal act would constitute the offense of slander and not libel, as held by this court in its opinion by Presiding Judge Morrow on motion for rehearing.
Neither of the above questions were expressly decided in the case of Mankins v. State, 41 Tex.Crim. Rep., and it is at best only an authority by inference. Other cases cited by state's counsel are either civil cases of libel and slander or cases outside the state under penal statutes, none of which throw any light on the question in the instant case.
It is insisted that it was neither necessary to allege in the indictment nor give in charge the statutory elements of adultery, and that it was correct for the court to instruct that "adultery is a penal offense." "The living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman when either is married to some other person" is a penal offense. (Art. 499, P. C.) But this statutory definition is not its only meaning. In fact, it could hardly be said to be its commonly accepted meaning. Adultery is defined in Webster's International Dictionary as "The unfaithfulness of a married person to the marriage bed." "Lewdness or unchastity of thought as well as an act forbidden by the Seventh Commandment."
Whatever may be the general rule, these various meanings of the word adultery, we think, made necessary in the instant case such averments in the indictments as would properly charge statutory adultery. For the same reason the court in his charge cannot assume that "adultery is a penal offense," especially so when, as in this case, neither the allegations of the indictment nor the language of the alleged libelous statement contain the elements of statutory adultery, and the jurors are left by the court's charge to interpret its meaning as they see fit.
Believing that all questions discussed in the opinion on motion for rehearing were properly disposed of, the state's motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 240