Appellant was convicted of slander, and his punishment assessed at a fine of $500 and twelve months confinement in the county jail.
By bills of exception numbers 1 and 2 appellant calls in question the action of the court permitting the State to substitute the lost complaint or affidavit on which the information was filed, and the information. It appears that when the State was substituting said lost papers appellant desired to interpose an objection to the same and to be heard by evidence on his contest. This the court refused, remarking that he could not intervene or contest the substitution, but when the papers were substituted the court would entertain his motion to quash or abate the substituted papers. In this we think the court was in error. The substitution of a lost complaint or information is a judicial act, and is upon notice, and it is competent for the defendant to contest the substitution of said papers, if he sees fit. Art. 470, Code Crim. Proc.; Carter v. State, 41 Tex. Crim. 608. However, inasmuch as appellant asserted the same matters on his motion to quash, we see no error in the action of the court, as in our opinion the same did not present any sufficient reason for contesting the substitution or quashing the complaint and information, as was attempted.
Appellant proposed to show by W.C. Erwin, the party who swore to the complaint, that the complaint was not read over to him; that he did not state that said Bowers falsely or maliciously made the statement in said affidavit alleging a want of chastity of prosecutrix; or that the said allegation was false, or that he believed such to be the case. It will be observed that this witness does not undertake to say that the substituted complaint was not an exact copy of that sworn to by him, and, as we understand it, the only contest that can be made, when a complaint is proposed to be substituted, is that the substituted paper is not a substantial copy of the original. If Erwin did not read the complaint or have it read over to him, it was his fault; he swore to it. Of course, if he did not make the affidavit or swear to the complaint, there was no complaint, and this could be shown. Carter v. State, 41 Tex.Crim. Rep.. However, such is not the case as presented here. We do not believe the court committed an error in overruling appellant's motion to quash and strike out the complaint and information.
As to the motion for continuance, we do not believe appellant used proper diligence, either to get the witnesses or take depositions — this being his second application for continuance. *Page 189
During the trial appellant made a motion to have the court order an examination of the private parts of the prosecutrix by reputable physicians, alleging that such examination would show that her hymen had not been ruptured and destroyed by a male organ penetrating the same. (In this connection it is proper to state that appellant's defense consisted of an effort to prove the truth of the allegation; that is, that he had had carnal intercourse with prosecutrix.) This motion was objected to by the State, on the ground that the court had no authority to make such order. The court sustained the objection, and declined to appoint the committee of physicians, and to authorize them to subject prosecutrix to a private examination. In Whitehead v. State,39 Tex. Crim. 89, some of the authorities bearing on this question were examined. Although the case is not decisive of the question here presented, it was intimated there that the court had no authority to enforce such an order; and we now hold that the court did not err, when prosecutrix objected to the examination, to refuse to make the order. Of course, if prosecutrix had been willing to submit to the examination, and such examination would tend to solve a disputed issue in the case, it would be entirely competent for the court to make the order.
It does not occur to us that it was pertinent or material to prove by the father of prosecutrix that he had a wife and four children, and that he was a renter. However, we do not believe this testimony was calculated to injure appellant's rights, certainly not to the extent that requires a reversal.
Appellant presented a number of bills of exception to the action of the court permitting the State to prove that the character of prosecutrix for virtue and chastity, at the time of the trial, was good. This was objected to, on the ground that the alleged slander occurred about a year before the trial, and that the reputation of prosecutrix should be confined to the time of the alleged slander and prior thereto; that to permit the evidence would be placing before the jury the opinion of the community upon the alleged slander long after it occurred; and that this testimony was calculated to discredit appellant's witnesses, who testified to acts and conduct of prosecutrix showing a want of chastity. In civil cases of slander, we understand the rule to be that it is competent to show an impairment in the plaintiff's character attributable to the alleged slander, and this would seem to be a correct rule as applicable to criminal cases. But here the proposition is to show that prosecutrix had sustained no damage or injury to her character occasioned by the alleged slanders, which would tend to show that the community discounted or did not believe the charge, and so afford an indirect method of impeachment of appellant's witnesses; at least it was strongly urged in the argument for this purpose. We hold that this evidence was not admissible.
To intensify the error discussed in the foregoing paragraph, the court permitted a number of witnesses to state how they personally regarded the character of prosecutrix at the time of the trial, and to testify that *Page 190 their families associated with prosecutrix, and they received her into their families since the alleged slander had been promulgated, and that the neighbors received her on terms of social equality, and evidently did not believe the charge. When this character of testimony was objected to, counsel for the State replied that this testimony was admissible, and remarked "because it shows that, notwithstanding these slanderous reports, Willie Conner is taken and received into the homes and families of the best people in the community where she lives. By that act these good people say they don't believe these reports, for if these people had the least doubt about it she would be excluded from their homes. I, for one, believe in the doctrine `Vox populi vox Dei' — the voice of the people is the voice of God. This is true, in my judgment, in all cases, and should be true in this." This character of argument was objected to. Of course, if, as held above, the general reputation of prosecutrix, as proven, was not admissible in evidence, the individual opinions of the neighbors and how they received prosecutrix was much more objectionable, and the vice of its admission was emphasized by the argument of counsel. This evidence, as offered, and as used before the jury, was evidently hurtful to appellant. It was calculated to discredit his witnesses, and may have indirectly enhanced the verdict against him.
The State was permitted to prove, over defendant's objections, by another witness, and also by himself, that when some one told him that Will Gibson had stated that he had had intercourse with Willie Conner, that he (appellant) said Gibson ought not to have told it; that if he was old man Conner he would shoot his head off. Appellant further testified that if he had a girl and a man would say that about her he would never bring it into court, but would hurt him pretty bad. This was objected to, because it was not a confession, but related to what some one else had done and said; was not pertinent to this case, but was prejudicial to defendant. We do not believe this testimony was admissible. It is not necessary to discuss other assignments, but for the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.